California Civil Jury Instructions (CACI) (2017)

5002. Evidence

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5002.Evidence
You must decide what the facts are in this case only from the evidence
you have seen or heard during the trial, including any exhibits that I
admit into evidence. Sworn testimony, documents, or anything else may
be admitted into evidence. You may not consider as evidence anything
that you saw or heard when court was not in session, even something
done or said by one of the parties, attorneys, or witnesses.
What the attorneys say during the trial is not evidence. In their opening
statements and closing arguments, the attorneys talk to you about the
law and the evidence. What the lawyers say may help you understand
the law and the evidence, but their statements and arguments are not
evidence.
The attorneys’ questions are not evidence. Only the witnesses’ answers
are evidence. You should not think that something is true just because
an attorney’s question suggested that it was true. [However, the
attorneys for both sides have agreed that certain facts are true. This
agreement is called a stipulation. No other proof is needed and you
must accept those facts as true in this trial.]
Each side had the right to object to evidence offered by the other side.
If I sustained an objection to a question, ignore the question and do not
guess as to why I sustained the objection. If the witness did not answer,
you must not guess what he or she might have said. If the witness
already answered, you must ignore the answer.
[During the trial I granted a motion to strike testimony that you heard.
You must totally disregard that testimony. You must treat it as though it
did not exist.]
New September 2003; Revised April 2004, February 2007, December 2012, June
2014
Directions for Use
The advisory committee recommends that this instruction be read to the jury before
reading instructions on the substantive law. For a similar instruction to be given
before trial, see CACI No. 106, Evidence.
Include the bracketed language in the third paragraph if the parties have entered
into any stipulations of fact.
Read the last bracketed paragraph if a motion to strike testimony was granted
during the trial.
Sources and Authority
• “Evidence” Defined. Evidence Code section 140.
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• Jury to Decide Questions of Fact. Evidence Code section 312.
• Miscarriage of Justice. Evidence Code section 353.
• “Unless the trial court, in its discretion, permits a party to withdraw from a
stipulation, it is conclusive upon the parties, and the truth of the facts contained
therein cannot be contradicted.” (Palmer v. City of Long Beach (1948) 33
Cal.2d 134, 141–142 [199 P.2d 952].)
• “[A]ttempts to suggest matters of an evidentiary nature to a jury other than by
the legitimate introduction into evidence is misconduct whether by questions on
cross-examination, argument or other means.” (Smith v. Covell (1980) 100
Cal.App.3d 947, 960 [161 Cal.Rptr. 377].)
• “The right to object on appeal to misconduct or improper argument, even when
prejudicial, is generally waived in the absence of a proper objection and request
the jury be admonished.” (Atkins v. Bisigier (1971) 16 Cal.App.3d 414, 427 [94
Cal.Rptr. 49]; Horn v. Atchison, Topeka & Santa Fe Ry. Co. (1964) 61 Cal.2d
602, 610 [39 Cal.Rptr. 721, 394 P.2d 561].)
Secondary Sources
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 34 et seq.
7Witkin, California Procedure (5th ed. 2008) Trial, § 272
Cotchett, California Courtroom Evidence, § 2.09 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 551, Trial, § 551.61 (Matthew
Bender)
California Judges Benchbook: Civil Proceedings—Trial (2d ed.) §§ 3.52, 12.9,
12.35 (Cal CJER 2010)
CONCLUDING INSTRUCTIONS CACI No. 5002
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