3.Court’s Preliminary Jury Instructions

THE COURT: Members of the jury, before the trial begins, there are certain instructions you should have to better understand your functions as a juror and how you should conduct yourself during the trial. Your duty is to decide the case based only on the evidence presented and the law given to you by the Court.

Do not let any personal feelings of bias or prejudice about such things as race, religion, national origin, sex, or age affect your deliberations.

Do not begin your deliberations and discussion of the case until all the evidence is presented and I have instructed you on the law.

Do not discuss this case among yourselves or with anyone else until your final deliberations in the jury room.

We'll stop or recess from time to time during the trial. You may be excused from the courtroom when it is necessary for me to hear legal arguments from the lawyers.

If you come into contact with any of the parties, lawyers or witnesses, do not speak with them. For their part, the parties, lawyers and witnesses will not contact or speak with the jurors.

As the Court has previously informed you, the jury will not be sequestered during this trial. That decision is dependent on the jurors not listening to, watching, or reading any news accounts of the case during the trial, nor discussing it with anyone, including members of your family, or other jurors.

For these reasons it is vital that you do not listen to any conversation about the case. Do not read any newspaper or internet reports or listen to any news reports on radio or television about this trial.

To assure that you are not exposed to improper media coverage, the Court is ordering that, for the duration of the trial, you do not watch the local news on television; do not listen to the local news on the radio; and do not read the newspaper, unless you first have someone remove any articles about this case.

In addition, do not visit any internet websites or web logs which may include any information about the case. Should you be exposed to any reports or communications from any source concerning the case during the trial, you should report that information to the jury bailiff.

Do not investigate this case on your own or visit the scene. Do not engage in any experimentation or research relating to any issues, facts, or persons involved in the case.

Do not consult dictionaries, computers, websites, or other reference materials for any additional information.

The Court is aware that many of you have been exposed to publicity concerning this case before you were selected to serve as a juror. Each of you has committed to base your verdict only on the evidence introduced during the trial. It is of vital importance to the parties and to the sanctity of the court process that you remain true to this commitment.

Anything you may see or hear outside the courtroom is not evidence. You are to decide the case solely on the evidence that is offered and received at trial.

Evidence is defined as, first, the sworn testimony of witnesses both on direct and cross-examination, regardless of who called the witness.

Second, the exhibits the Court has received.

And, third, any facts to which the lawyers have agreed or stipulated or which the Court has directed you to find.

Attorneys for each side have the right and the duty to object to what they consider are improper questions asked of witnesses and to the admission of other evidence which they believe is not properly admissible. You should not draw any conclusions from the fact an objection was made. By allowing testimony or other evidence to be received over the objection of counsel, the Court is not indicating any opinion about the evidence. You jurors are the judges of the credibility of the witnesses and the weight of the evidence.

You are not required to, but you may take notes during this trial except during the opening statements and the closing arguments. The Court will provide you with materials for this purpose. In taking notes, you must be careful that it does not distract you from carefully listening to and observing the witnesses.

You may rely on your notes to refresh your memory during your deliberations, otherwise keep them confidential. Your notes will be collected by the jury bailiff after each day's session and kept in a secure place until the next day of trial. After the trial, the notes will be collected and destroyed. You will not have a copy of the written transcript of the trial testimony available for use during your deliberations. You may ask to have specific portions of the testimony read to you. You should pay careful attention to all the testimony because you must rely primarily on your memory of the evidence and the testimony introduced during the trial.

It is the duty of the jury to scrutinize and to weigh the testimony of witnesses and determine the effect of the evidence as a whole. You are the sole judges of the credibility; that is, the believability of the witnesses and of the weight to be given to their testimony.

In determining the credibility of each witness and the weight you give to the testimony of each witness, consider these factors:

Whether the witness has an interest or lack of interest in the result of the trial.

The witness' conduct, appearance and demeanor on the witness stand.

The clearness or lack of clearness of the witness' recollections.

The opportunity the witness had for observing and knowing the matters the witness testified about.

The reasonableness of the witness' testimony.

The apparent intelligence of the witness.

Bias or prejudice, if any has been shown.

Possible motives for falsifying testimony.

And all other factors -- excuse me -- all other facts and circumstances during the trial which tend either to support or to discredit the testimony.

Then give to the testimony of each witness the weight you believe it should receive. There is no magic way for you to evaluate the testimony. Instead, you should use your common sense and experience. In everyday life you determine for yourselves the reliability of things people say to you; you should do the same thing here.

To assist you in evaluating the evidence, I will now read to you portions of the specific jury instructions for the offenses with which the defendant is charged. I will read them to you in their entirety at the close of the evidence.

Count 1 of the Information charges the defendant with first degree intentional homicide as a party to the crime. Section 939 of the Criminal Code of Wisconsin provides that whoever is concerned in the commission of a crime as a party to that crime and may be convicted of that crime although that person did not directly commit it.

The State contends that the defendant was concerned in the commission of the crime of first degree intentional homicide by either directly committing it or by intentionally aiding and abetting the person who directly committed it.

If a person intentionally aids and abets the commission of a crime, then that person is guilty of the crime as well as the person who directly committed it. A person intentionally aids and abets the commission of a crime when, acting with acknowledge or belief that another person is committing or intends to commit a crime, he knowingly either assists the person who commits the crime or is ready and willing to assist and the person who commits the crime knows of the willingness to assist.

To intentionally aid and abet the crime of first degree intentional homicide, the defendant must know that another person is committing or intends to commit the crime of first degree intentional homicide and have the purpose to assist in the commission of that crime.

Before you may find the defendant guilty of first degree intentional homicide as a party to the crime, the State must prove, by evidence which satisfies you, beyond a reasonable doubt, that the defendant directly committed the crime or intentionally aided and abetted the commission of the crime.

First degree intentional homicide as defined in Section 940.01 of the Criminal Code of Wisconsin is committed by one who causes the death of another human being with intent to kill that person or another. Before you may find the defendant guilty of first degree intentional homicide, the State must prove, by evidence which satisfies you, beyond a reasonable doubt, that the following two elements were present:

One, Steven Avery caused the death of Teresa Halbach or aided and abetted another in causing the death of Teresa Halbach. Cause means that the defendant's act was a substantial factor in producing the death.

Two, Steven Avery acted with the intent to kill Teresa Halbach whether he did so directly or aided and abetted another. Intent to kill means that the defendant had the mental purpose to take the life of another human being or was aware that his conduct was practically certain to cause the death of another human being. While the law requires that the defendant acted with intent to kill, it does not require that the intent exists for any particular length of time before the act is committed.

The act need not be brooded over, considered, or reflected upon for a week, a day, an hour, or even for a minute. There need not be any appreciable time between the formation of the intent and the act. The intent to kill may be formed at any time before the act, including the instant before the act and must continue to exist at the time of the act.

You cannot look into a person's mind to find intent. Intent to kill must be found, if found at all, from the defendant's acts, words, and statements, if any, and from all the facts and circumstances in this case bearing upon intent.

Intent should not be confused with motive. While proof of intent is necessary to a conviction, proof of motive is not. Motive refers to a person's reason for doing something.

While motive may be shown as a circumstance to aid in establishing the guilt of the defendant, the State is not required to prove motive on the part of a defendant in order to convict. Evidence of motive does not, by itself, establish guilt. You should give it the weight you believe it deserves, under all the circumstances.

If you are satisfied, beyond a reasonable doubt, at the conclusion of the trial, that the defendant directly committed both elements of first degree intentional homicide, you should find the defendant guilty. If you are not so satisfied, you must find the defendant not guilty.

Count 2 charges the defendant with mutilating a corpse, also as a party to the crime. The State contends that the defendant was concerned in the commission of the crime of mutilating a corpse by either directly committing it or by intentionally aiding and abetting the person who committed it.

Before you may find the defendant guilty of mutilating a corpse as a party to the crime, the State must prove, by evidence which satisfies you, beyond a reasonable doubt, that the defendant committed the -- directly committed the crime of mutilating a corpse or intentionally aided and abetted the commission of that crime.

Mutilating a corpse as defined in Section 940.11 (1) of the Criminal Code of Wisconsin is violated by one who mutilates a corpse with intent to conceal a crime or avoid apprehension, prosecution, or conviction for a crime. Before you may find the defendant guilty of this offense, the State must prove, by evidence which satisfies you, beyond a reasonable doubt, that the following two elements were present:

One, Steven Avery mutilated the corpse of Teresa Halbach or aided and betted another in mutilating the corpse of Teresa Halbach.

Two, in mutilating the corpse of Teresa Halbach or in aiding and abetting another in mutilating her corpse, Steven Avery acted with the intent to conceal a crime. This requires that the defendant acted with the purpose to conceal a crime.

If you are satisfied, beyond a reasonable doubt, at the conclusion of the trial, that Steven Avery directly committed both elements of this offense, you should find the defendant guilty. If you are not so satisfied, you must find the defendant not guilty.

Count 3 charges the defendant with felon in possession of a firearm. Section 941.29 of the Criminal Code of Wisconsin is violated by a person who possesses a firearm, if that person has been convicted of a felony.

Before you may find the defendant guilty of this offense, the State must prove, by evidence which satisfies you, beyond a reasonable doubt, that the following two elements were present:

One, the defendant possessed a firearm. Firearm means a weapon which acts by the force of gunpowder. It is not necessary that the firearm was loaded or capable of being fired.

Possess means that the defendant knowingly had actual physical control of a firearm. An item is in a person's possession if it is in an area over which the person has control and the person intends to exercise control over the item.

Two, the second element, is that the defendant had been convicted of a felony before November 5, 2005. The parties in this case have agreed that Steven Avery was convicted of a felony before November 5, 2005 and you must accept this as conclusively proved. If you are satisfied, beyond a reasonable doubt, at the conclusion of the trial, that both elements of this offense have been proved, you should find the defendant guilty. If you are not so satisfied, you must find the defendant not guilty.

The final count charges the defendant with false imprisonment. False imprisonment as defined in Section 940.30 of the Criminal Code of Wisconsin is committed by one who intentionally confines or restrains another without the person's consent and with knowledge that he has no lawful authority to do so.

Before you may find the defendant guilty of this offense the State must prove, by evidence which satisfies you, beyond a reasonable doubt, that the following five elements were present:

One, the defendant confined or restrained Teresa Halbach during her lifetime.

Two, the defendant confined or restrained Teresa Halbach intentionally. This requires that the defendant have the mental purpose to confine or restrain Teresa Halbach.

Three, Teresa Halbach was confined or restrained without her consent.

Four, the defendant had no lawful authority to confine or restrain Teresa Halbach.

Five, the defendant knew that Teresa Halbach did not consent and knew that he did not have lawful authority to confine or restrain Teresa Halbach.

Although this requires genuine restraint or confinement, it does not require that it be in a jail or prison. If the defendant deprived Teresa Halbach of freedom of movement or compelled her to remain where she did not wish to remain, then Teresa Halbach was confined or restrained.

The use of physical force is not required. One may be confined or restrained by acts, or words, or both.

You cannot look into a person's mind to find out intent or knowledge. Intent and knowledge must be found, if at all, from the defendant's acts, words, and statements, if any, and from all the facts and circumstances in this case bearing upon intent and knowledge.

If you are satisfied, beyond a reasonable doubt, at the conclusion of the trial, that all five elements of this offense have been proproved -- excuse me -- have been proved, you should find the defendant guilty. If you are not so satisfied, you must find the defendant not guilty.

In reaching your verdict examine the evidence with care and caution. Act with judgment, reason and prudence. Defendants are not required to prove their innocence, the law presumes that every person charged with the commission of an offense is innocent. This presumption requires a finding of not guilty, unless in your deliberations you find it is overcome by evidence which satisfies you, beyond a reasonable doubt, that the defendant is guilty.

The burden of establishing every fact necessary to constitute guilt is upon the State. Before you can return a verdict of guilty, the evidence must satisfy you, beyond a reasonable doubt, that the defendant is guilty. If you can reconcile the evidence, upon any reasonable hypothesis consistent with the defendant's innocence, you should do so and return a verdict of not guilty.

The term reasonable doubt means a doubt based upon reason and common sense. It is a doubt for which a reason can be given, arising from a fair and rational consideration of the evidence or lack of evidence. It means such a doubt as would cause a person of ordinary prudence to pause or hesitate when called upon to act in the most important affairs of life.

A reasonable doubt is not a doubt which is based on mere guesswork or speculation. A doubt which arises merely from sympathy or from fear to return a verdict of guilt is not a reasonable doubt.

A reasonable doubt is not a doubt such as may be used to escape the responsibility of a decision. While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt, you are to search for the truth.

As you know, although this is a Manitowoc County case with a Manitowoc County jury, the case is being tried at the Calumet County Courthouse. You will learn that when Steven Avery became a suspect in this case, the Manitowoc County District Attorney turned control of the case over to the Calumet County District Attorney because Mr. Avery had a lawsuit pending against Manitowoc County at the time. For logistical reasons, the parties jointly requested that the trial be held in Calumet County and the Court granted that request. You should draw no inference for or against either party to this case because of the location of the trial, or the fact that it is not being prosecuted by the Manitowoc County District Attorney.

In a few minutes the lawyers will make opening statements. The purpose of an opening statement is to give the lawyers an opportunity to tell you what they expect the evidence will show, so that you will better understand the evidence as it is introduced during the trial. I must caution you, however, that the opening statements are not evidence.

At this time we're going to take a very short break so that the State may get its equipment ready to present the opening statement. We'll be back in just a few minutes.