You are considering the case of the State of Georgia versus Joe Dui.

    The Defendant in this case has been charged in an accusation filed by the Solicitor General of Henry County with driving under the influence of alcohol and failure to maintain a lane.

    This accusation was filed in Court (as amended) on October 10, 2006.  To this accusation the Defendant has entered pleas of not guilty.  The Accusation and the pleas of  not guilty form the issues which you have been selected, sworn and empanelled to try.

Burden of Proof

    I caution you that the fact that an accusation has been brought against this Defendant is not evidence of his guilt.  You should not consider the accusation as evidence or implication of guilt.

    The Defendant is presumed to be innocent until proven guilty.  Every Defendant enters upon the trial of the case with a presumption of innocence in his favor.  This presumption remains with the Dfendant until it is overcome by the state with evidence that is sufficient to convince you beyond a reasonable doubt that the Defendant is guilty of the offense charged.

    No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt. 

    The burden of proof rests upon the state to prove every material allegation of the accusation and every essential element of the crime charged beyond a reasonable doubt.  There is no burden of proof upon the Defendant whatever, and the burden never shifts to the Defendant to prove his innocence.  When the evidence raises a defense, the burden is on the state to negate or disprove that defense beyond a reasonable doubt.  The Defendant in a criminal case is under no duty to present any evidence thending to prove innocence and is not required to take the stand and testify in the case. 

    Now, the State is not required to prove the guilty of the accused beyond all doubt or to a mathematical certainty.  A reasonable doubt means just what it says.  It is a doubt of a fair-minded, impartial juror, honestly seeking the truth.  It is a doubt based upon common sense and reason.  It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given, arising from a consideration of the evidence, a lack of evidence, a conflict in the evidence, or any combination of these.

    If after giving consideration to all the facts and circumstances of this case, your minds are wavering, unsettled or unsatisfied, then that is a doubt of the law, and you should aquit the Defendant; but if that doubt does not exist in your minds as to the guilt of the accused, then you would be authorized to convict the Defendant.  

    If the State fails to prove the Defendant's guilt beyond a reasonable doubt, it would be your duty to acquit the Defendant.  

EVIDENCE

    Evidence is the means by which any fact that is put in issue is established or disproved. Evidence includes all the testimony of the witnesses and the exhibits admitted during the trial.  It also includes any facts agreed to by counsel.  It does not include the accusation or the opening statements and closing arguments by the attorneys.  

    Evidence may be either direct or circumstantial or both.  Direct Evidence is evidence that points immediately to the question at issue.  Evidence may also be used to prove a fact by inference.  This is referred to as circumstantial evidence.  Circumstantial evidence is the proof of facts or circumstances, by direct evidence, from which you may infer other related or connected facts that are reasonable and justified in the light of your experience.  To warrant a conviction on circumstantial evidence, the proven facts must not only be consistent with the theory of guilt, but must exclude every other reasonable theory other thaqn the guilty of the accused.  The comparative weight of circumstantial evidence and direct evidence, on any given issue, is a question of fact for the jury to decide.  

EVIDENCE: OPINIONS

    Evidence may also include the opinions of witnesses  on the relevant issues.  A witness who satisfactorioy shows that he had the opportunity to observe, and did observe, the condition of another may testify to an opinion as to whether that person was under the influence, the extent thereof, and whether such person was a less safe driver as a result of such intoxication, state the facts upon which the opinion was based.  Before you can consider the opinion of a witness on any issue, you must find that the witness has a sufficient factual basis for forming the opinion expressed.  What weight and credit you give any testimony, opinion or otherwise, is entirely within your discretion; you are not bound by any opinion expressed by any witness.

EVIDENCE; CREDIBILITY, CONFLICTS AND IMPEACHMENT

    You must determine the credibility or believability of the witness.  It is for your to determine what witness or witnesses you will believe and which witness or witnesses you will not believe, if there are some you do not believe.

    In passing upon their credibility, you may consider all the facts and circumstances of the case, the witnesses'  manner of testifying, their intelligence, their interest or lack of interest, their means and opportunity for knowing the facts which they testify about, the nature of the facts which they testify about, the probability or improbability of their testimony, and of the occurences which they testify about.  You may also consider their personal credibility insofar as it may legitimately appear from the trial of the case. 

    When you consider the evidence in this case, if you find a conflict, you should settle this confict, if you can, without believing that any witness made a false statement.  If you cannot do this, then you should believe that witness or those witnesses you think best entitled to belief.  You must determine what testimony you will believe and what testimony, if any, you will not believe.  

    To impeach a witness is prove the witness is unworthy of belief.  A witness may be impeached by disproving the facts to which the witness testified, or by proof of contradictory statements, previously made by the witness, as to matters relevant to the witness's testimony and to the case.  If it is sought to impeach a witness by proof of prior contradictory statements, proof of the general good character of the witness may be shown.  The effect of the evidence is to be determined by the jury.  

    If any attempt has been made in this case to impeach any witness by proof of contradictory statements previously made, you must determine from the evidence:

a) First, whether any such statments were made;

b) Second, whether they were contradictory to any statements the witness made on the witness stand; and

c) Third, whether it was material to the witness's testimony and to the case.

    If you find that a witness has been successfully impeached by proof of previous, contradictory statements, you may disregard that testimony, unless it is corroborated by other credible testimony , and the credit to be given to the balance of the testimoney of the witness would be for your to determine.

    It is for you to determine whether or not a witness has been impeached and to determine the credibility of the such witness and the weight the witness's testimony shall receive in the consideration of the case.

    Should you find that any witness, prior to the witness's testimony in this case form the witness stand, has made any meterial prior inconsistent statement, then you are authorized to consider that prior statement not only for the purposes of impeachment, but also as substantive evidence in the case.  

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