For jurors, the burden of proof in a civil action is a mystery. The vast majority of jurors have no idea what the civil burden of proof is, as they are only familiar with the criminal standard (i.e., beyond a reasonable doubt). And by the time the jurors reach the end of the trial, they’ve filtered through the evidence applying the criminal standard. You can’t let this happen.
Prior to trial, you should send a letter to the Court requesting a pretrial instruction regarding the burden of proof. At the first pretrial conference, remind the Judge of your request and if the Judge is reluctant, you might tactfully remind her that the Deputy Chief Administrative Judge of the State of New York for courts outside of New York City always gives a pretrial instruction regarding the burden of proof, even if it is not requested by the parties.
Here’s the letter we use when requesting a pretrial instruction regarding the burden of proof:
Dear Justice Smith:
We respectfully request a pretrial jury instruction concerning the burden of proof (New York Pattern Jury Instruction 1:23) in the above-referenced action. This letter sets forth the basis for our request.
Most jurors’ experience with the law is criminal and its higher burden of proof. As a result, many jurors will see and hear the evidence while applying a burden of proof that does not apply. Many prospective jurors do not know that they will be asked to decide fault, causation and damages based on the civil standards for those issues, namely, preponderance of the evidence.
“Most jurors walk into the courtroom thinking the bar for proving medical negligence is higher than it is.”
Jeffrey D. Boyd, Esq., “What’s on Jurors’ Minds?”, May, 2017, TRIAL Magazine
By the end of the trial, the jurors have heard and seen the evidence without knowing what the burden of proof is. Jurors should not sit through a week(s) of trial before they hear—straight from the Judge—the correct burden of proof.
Hon. Michael V. Coccoma, Deputy Chief Administrative Judge for courts outside New York City, gives a pretrial jury instruction regarding the burden of proof in all of his civil trials, even if the charge is not requested by the parties.
While there is no disadvantage to any of the parties by informing the jury of the burden of proof prior to the trial, the failure to give such a charge can be very harmful to the plaintiff. For these reasons, we respectfully request that the Court instruct the jury as to the burden of proof before the trial begins.
John H. Fisher
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