CACI 5016 Judge’s Commenting on Evidence

California Civil Jury Instructions CACI

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.

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 Constitution.

“[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 2019)