CACI No. 5016. Judge’s Commenting on Evidence

Judicial Council of California Civil Jury Instructions (2023 edition)

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5016.Judge’s Commenting on Evidence
In this case, I have exercised my right to comment on the evidence.
However, you the jury are the exclusive judges of all questions of fact
and of the credibility of the witnesses. You are free to completely ignore
my comments on the evidence and to reach whatever verdict you believe
to be correct, even if it is contrary to any or all of those comments.
New April 2007
Directions for Use
Read this instruction before deliberations if the judge has exercised the right under
article VI, section 10 of the California Constitution to comment on the evidence.
This instruction should also be given if after deliberations have begun, the jury asks
for additional guidance and the judge then comments on the evidence. (See People
v. Rodriguez (1986) 42 Cal.3d 730 [230 Cal.Rptr. 667, 726 P.2d 113].)
Sources and Authority
Judge May Comment on the Evidence. Article VI, section 10 of the California
“[T]he decisions admonish that judicial comment on the evidence must be
accurate, temperate, nonargumentative, and scrupulously fair. The trial court may
not, in the guise of privileged comment, withdraw material evidence from the
jury’s consideration, distort the record, expressly or impliedly direct a verdict, or
otherwise usurp the jury’s ultimate factfinding power.” (People v. Rodriguez,
supra, 42 Cal.3d at p. 766, internal citations omitted.)
“[A] trial court has ‘broad latitude in fair commentary, so long as it does not
effectively control the verdict. For example, it is settled that the court need not
confine itself to neutral, bland, and colorless summaries, but may focus critically
on particular evidence, expressing views about its persuasiveness.’ . . . ‘[A]
judge may restrict his comments to portions of the evidence or to the credibility
of a single witness and need not sum up all the testimony, both favorable and
unfavorable.’ (People v. Proctor (1992) 4 Cal.4th 499, 542 [15 Cal.Rptr.2d
340, 842 P.2d 1100], original italics.)
“[A] judge’s power to comment on the evidence is not unlimited. He cannot
withdraw material evidence from the jury or distort the testimony, and he must
inform the jurors that they are the exclusive judges of all questions of fact and
of the credibility of the witnesses. In civil cases, the court’s powers of comment
are less limited than in criminal cases, but they still must be kept within certain
bounds. The court may express an opinion on negligence, but the court’s
remarks must be appropriate and fair.” (Lewis v. Bill Robertson & Sons Inc.
(1984) 162 Cal.App.3d 650, 654 [208 Cal.Rptr. 699], internal citation omitted.)
Secondary Sources
7 Witkin, California Procedure (5th ed. 2008) Trial, § 255
California Trial Objections (Cont.Ed.Bar 10th ed.) §§ 29.21, 29.23
28 California Forms of Pleading and Practice, Ch. 326, Jury Instructions, § 326.20
(Matthew Bender)
California Judges Benchbook: Civil Proceedings - Trial §§ 12.30, 12.33 (Cal CJER

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