CHAPTER 2

EVIDENCE

T.P.I. - Civil

Number

A. General Rules

Evidence	2.01

Direct and Circumstantial Evidence	2.02

Weighing Conflicting Testimony	2.03

Absence of Witness or Evidence	2.04

Limited Admission of Evidence - Parties or Purpose	2.05

Deposition Testimony	2.06

Interrogatories	2.07

Requests for Admissions	2.08

Stipulations	2.09

Failure of Party to Testify Concerning Conversations

With Deceased or Incompetent Person	2.10

Judicial Notice	2.11

B. Evaluation of Evidence

Credibility of Witness	2.20

Discrepancies in Testimony	2.21

Witness Willfully False	2.22

Admissions Implied From Silence	2.23

Privileges	2.24

Physical Laws, Facts	2.25

Evidence of Settlement	2.26

C. Expert Testimony

Expert Testimony - Determination of Weight	2.30

Hypothetical Question	2.31

Computer Animation	2.32

Computer Simulation	2.33

D. Burden of Proof

Burden of Proof - Preponderance of Evidence	2.40

Burden of Proof - Clear and Convincing Evidence	2.41

T.P.I. - CIVIL 2.01

EVIDENCE

You are to decide this case only from the evidence which was presented at this trial. The evidence consists of:

1.	The sworn testimony of the witnesses who have testified, both in person and by deposition;

2. The exhibits that were received and marked as evidence; and

3.	Any facts to which all the lawyers have agreed or stipulated.

[4.	Any other matters that I have instructed you to consider as evidence.]

T.P.I. - CIVIL 2.02

DIRECT AND CIRCUMSTANTIAL EVIDENCE

There are two kinds of evidence; direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony of a witness about what the witness personally observed.

Circumstantial evidence is indirect evidence that gives you clues about what happened. Circumstantial evidence is proof of a fact, or a group of facts, that causes you to conclude that another fact exists. It is for you to decide whether a fact has been proved by circumstantial evidence. If you base your decision upon circumstantial evidence, you must be convinced that the conclusion you reach is more probable than any other explanation.

[For example, if a witness testified that the witness saw it raining outside, that would be direct evidence that it was raining. If a witness testified that the witness saw someone enter a room wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining.]

You are to consider both direct and circumstantial evidence. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence.

In making your decision, you must consider all the evidence in light of reason, experience and common sense.

T.P.I. - CIVIL 2.03

WEIGHING CONFLICTING TESTIMONY

Although you must consider all of the evidence, you are not required to accept all of the evidence as true or accurate.

You should not decide an issue by the simple process of counting the number of witnesses who have testified on each side. You must consider all the evidence in the case. You may decide that the testimony of fewer witnesses on one side is more convincing than the testimony of more witnesses on the other side.

T.P.I. - CIVIL 2.04

ABSENCE OF WITNESS OR EVIDENCE

Under certain circumstances you may consider the absence of evidence or a witness. You may conclude that the [evidence] [testimony] of the witness would be adverse to that party who failed to offer it only if you find all of the following elements:

1.	That it was within the power of a party to [offer evidence] [produce a witness] on an issue in this case, but that party has failed to [offer the evidence] [to produce the witness]; and

2.	The [evidence] [witness] was uniquely under the control of the party and could have been produced by the exercise of reasonable diligence; and

3.	[The [evidence] [ witness] was not equally available to an adverse party] [or] [the witness was likely to be biased against an adverse party because of a relationship to the party who would be expected to produce the witness] ; and

4.	The [evidence] [witness' testimony] would not be merely cumulative; and

5.	A reasonable person under the same or similar circumstances would have [offered the evidence] [produced the witness] if the [evidence] [testimony] would be favorable; and

6.	No reasonable excuse for the failure has been shown.

You must find all of these elements before you can conclude that the [evidence] [testimony of a witness] would be adverse to a party.

T.P.I. - CIVIL 2.05

LIMITED ADMISSION OF EVIDENCE - PARTIES OR PURPOSE

[If evidence was admitted but limited to one or more parties, you must not consider it as to any other party.]

[Whenever evidence was admitted for a limited purpose, you must not consider it for any other purpose.]

Your attention was called to these matters when the evidence was admitted.

T.P.I. - CIVIL 2.06

DEPOSITION TESTIMONY

Certain testimony has been presented by deposition. A deposition is testimony taken under oath before the trial and preserved in writing [or on videotape]. You are to consider that testimony as if it had been given in court.

T.P.I. - CIVIL 2.07

INTERROGATORIES

During the course of the trial you may have heard reference made to the word "interrogatory". An interrogatory is a written question that must be answered under oath in writing. You are to consider interrogatories and their answers as if the questions had been asked and answered in court.

T.P.I. - CIVIL 2.08

REQUESTS FOR ADMISSIONS

The [plaintiff] [defendant] has introduced into evidence certain "requests for admissions". If these facts were admitted or not answered, you are to consider the facts to be true, since the other party had the opportunity to deny the admission request but did not do so.

T.P.I. - CIVIL 2.09

STIPULATIONS

A stipulation is an agreement. The parties have stipulated that certain matters of fact are true. They are bound by this agreement, and in your consideration of the evidence you are to treat these facts as proven.

[The parties have stipulated that if were called as a witness, [he][she] would testify as stipulated. You are to regard this stipulated testimony as if it had been given in open court by any other witness.]

T.P.I. - CIVIL 2.10

FAILURE OF PARTY TO TESTIFY

CONCERNING CONVERSATIONS

WITH DECEASED OR INCOMPETENT PERSON

[Name of deceased or incompetent person] cannot be here to testify. The law does not permit the [defendant] [plaintiff] [or] [any other person who has an interest] to testify about transactions with the person who is now [deceased] [incompetent]. Therefore, you should not consider as favorable or unfavorable that [name or status of defendant, plaintiff, or any other interested person] did not testify concerning such transactions with [name of deceased or incompetent person].

T.P.I. - CIVIL 2.11

JUDICIAL NOTICE

In this case the Court has taken what is known as "Judicial Notice" of certain facts. The Court may take judicial notice of facts that cannot be the subject of reasonable dispute. The Court has taken judicial notice that

[ state facts ]. You must accept these facts as proven.

T.P.I. - CIVIL 2.20

CREDIBILITY OF WITNESS

You are the sole and exclusive judges of the credibility or believability of the witnesses who have testified in this case. You must decide which witnesses you believe and how important you think their testimony is. You are not required to accept or reject everything a witness says. You are free to believe all, none, or part of any person's testimony.

In deciding which testimony you believe, you should rely on your own common sense and everyday experience. There is no fixed set of rules to use in deciding whether you believe a witness, but it may help you to think about the following questions:

1.	Was the witness able to see, hear, or be aware of the things about which the witness testified?

2.	How well was the witness able to recall and describe those things?

3.	How long was the witness watching or listening?

4.	Was the witness distracted in any way?

5.	Did the witness have a good memory?

6.	How did the witness look and act while testifying?

7.	Was the witness making an honest effort to tell the truth, or did the witness evade questions?

8.	Did the witness have any interest in the outcome of the case?

9.	Did the witness have any motive, bias or prejudice that would influence the witness' testimony?

10.	How reasonable was the witness' testimony when you consider all of	the evidence in the case?

11.	Was the witness' testimony contradicted by what that witness has
said or done at another time, by the testimony of other witnesses, or by other evidence?

[12.	Has there been evidence regarding the witness' intelligence, respectability, or reputation for truthfulness?]

[13.	Has the witness' testimony been influenced by any promises, threats, or suggestions?]

[14.	Did the witness admit that any part of the witness' testimony was not true?]

T.P.I. - CIVIL 2.21

DISCREPANCIES IN TESTIMONY

There may be discrepancies or differences within a witness' testimony or between the testimony of different witnesses. This does not necessarily mean that a witness should be disbelieved. Sometimes when two people observe an event they will see or hear it differently. Sometimes a witness may have an innocent lapse of memory. Witnesses may testify honestly but simply may be wrong about what they thought they saw or remembered. You should consider whether a discrepancy relates to an important fact or only to an unimportant detail.

T.P.I. - CIVIL 2.22

WITNESS WILLFULLY FALSE

You may conclude that a witness deliberately lied about a fact that is important to your decision in the case. If so, you may reject everything that witness said. On the other hand, if you decide that the witness lied about some things but told the truth about others, you may accept the part you decide is true and you may reject the rest.

T.P.I. - CIVIL 2.23

ADMISSIONS IMPLIED FROM SILENCE

Sometimes silence may be an admission. Under certain circumstances you may conclude that a party admitted or agreed with something that was said in that party's presence. Such evidence should be received with caution.

For you to draw the conclusion that a party adopted another's statement or believed it to be true, you must find all of the following elements:

1. That the party heard and understood the statement; and

2. That there was a reasonable opportunity to reply; and

3. That the party was in such physical and mental condition that the party reasonably could be expected to reply; and

4. That the statement was made under such circumstances that it
would normally call for an answer; and

5. That the party failed to respond or made an evasive response to the statement.

You must find all of these elements before you can consider the party's silence or evasive answer to be an admission.

T.P.I. - CIVIL 2.24

PRIVILEGES

No instruction recommended

T.P.I. - CIVIL 2.25

PHYSICAL LAWS, FACTS

You should consider all of the surrounding circumstances at the time of the event or occurrence when weighing the testimony of a witness. A statement of fact should be disregarded if you find the statement is inherently impossible or contrary to universally recognized physical laws or well established physical facts.

T.P.I. - CIVIL 2.26

EVIDENCE OF SETTLEMENT

You may consider evidence that a witness who was also involved in this incident [collision] has compromised and settled the witness' claim only for the purpose of deciding whether or not that witness has any interest or bias in this case. You may not consider any settlement as an admission of liability for any loss or damage.

T.P.I. - CIVIL 2.30

EXPERT TESTIMONY -

DETERMINATION OF WEIGHT

Usually witnesses are not permitted to testify as to opinions or conclusions. However, a witness who has scientific, technical, or other specialized knowledge, skill, experience, training, or education may be permitted to give testimony in the form of an opinion. Those witnesses are often referred to as "expert witnesses."

You should determine the weight that should be given to each expert's opinion [and resolve conflicts in the testimony of different expert witnesses]. You should consider:

1.	The education, qualifications, and experience of the witness[es];
and

2.	The credibility of the witness[es]; and

3.	The facts relied upon by the witness[es] to support the opinion; and

4.	The reasoning used by witness[es] to arrive at the opinion.

You should consider each expert opinion and give it the weight, if any, that you think it deserves. You are not required to accept the opinion of any expert.

T.P.I. - CIVIL 2.31

HYPOTHETICAL QUESTION

An expert witness was asked to assume that certain facts were true and to give an opinion based upon that assumption. This is called a hypothetical question. You must determine if any fact assumed by the witness has not been established by the evidence and the effect of that omission, if any, upon the value of the opinion.

T.P.I. - CIVIL 2.32

COMPUTER ANIMATION

You have been shown a computer animated visualization. This visualization is intended by the party presenting it to help you understand the testimony [and opinion] of the witness by illustrating that testimony visually. Like the testimony of the witness, it may be accepted or rejected in whole or in part.

It is for you to decide what, if any, weight you will give to the testimony of any witness. If you find that the animation does not fairly and accurately depict the event that it is intended to portray or if it does not fairly or accurately illustrate the testimony of the witness, then you should disregard it.

T.P.I. - CIVIL 2.33

COMPUTER SIMULATION

You have been shown a computer animated simulation which has been received as opinion evidence. This simulation should be considered the same as other expert opinion testimony and it may be accepted or rejected in whole or part.

It is for you to decide what, if any, weight you will give to any evidence. If you find that the simulation does not fairly and accurately depict the event that it is intended to portray or if the underlying data or process is not accurate or is not trustworthy, then you should disregard it.

T.P.I. - CIVIL 2.40

BURDEN OF PROOF - PREPONDERANCE OF EVIDENCE

In this action, the plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues:

__________________________________________________________________
__________________________________________________________________

The defendant has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues:

__________________________________________________________________
__________________________________________________________________	The term "preponderance of the evidence" means that amount of evidence that causes you to conclude that an allegation is probably true. To prove an allegation by a preponderance of the evidence, a party must convince you that the allegation is more likely true than not true.

If the evidence on a particular issue is equally balanced, that issue has not been proven by a preponderance of the evidence and the party having the burden of proving that issue has failed.

You must consider all the evidence on each issue.

T.P.I. - CIVIL 2.41

BURDEN OF PROOF -

CLEAR AND CONVINCING EVIDENCE

Clear and convincing evidence is a different and higher standard than preponderance of the evidence. To prove an issue by clear and convincing evidence, the party having that burden of proof must show that the proposed conclusion is highly probable and that there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.