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Jackman v. Nicholson3/29/2001
trier of fact--`a jury capable and willing to decide the case solely on the evidence before it.'" Id., citing McDonough Power Equip., Inc. v. Greenwood (1984), 464 U.S. 548, 104 S.Ct. 845.
It is true that the trial court has the discretion, in most cases, to use measures such as cautionary instructions, which the jury promises to follow, to avoid the necessity of a mistrial. However, the instruction must be fair to both sides and not add to prejudice against either party. The court's instruction in this case failed to accomplish that goal.
The trial court's instruction to the jury irrevocably impugned the credibility of plaintiff. The primary issue in this case is whether plaintiff's version or defendant's version of the way the accident occurred is more credible.
There is no evidence that plaintiff deliberately dropped the notes in the restroom, intending the jury to read them and be influenced by them. Yet, the trial court's instruction leads the jury to think so. First, plaintiff is mentioned as the author, following which the court specifically says one of the notes was addressed "to the jury." This reference clearly indicates a wrongful intent to violate all rules of fairness or decency to improperly influence the jury. The court compounds the problem by then reminding them (and counsel) that such contact is improper.
A neutral and fair instruction could have been formulated by telling the jury that the notes were not intended for them but were accidentally dropped and to disregard them. There is no basis to infer intentional dropping of the notes, as the only one who has knowledge of her intent is plaintiff, and her explanation is reasonable. If a neutral instruction had been formulated, there would be no need for a mistrial.
Once the unfair instruction was given, a mistrial was required, since misconduct of plaintiff as implied by the prejudicial instruction cannot be erased from the mind of even a conscientious jury as a subjective factor in deciding credibility. In some instances, instructions to disregard and promises to do so are insufficient to cure the problem. This was one of those instances. Furthermore, the instruction was only to ignore the contents of the notes, not the character of a party stooping to that behavior.
The fact that plaintiff had some backing in the jury as to percentage of fault does not prove that the jury's decision was not affected by the instruction concerning the notes. If anything, it leads one to the opposite conclusion, which is that the issue of fault was close enough to be debatable and vitally affected by an inference of bad character of plaintiff. Plaintiff's first assignment of error is sustained.
By the second assignment of error, plaintiff argues that the trial court erred in denying their motion for new trial. Civ.R. 59(A) permits a trial court to grant a new trial upon the motion of either party. We need not discuss the second assignment of error since a new trial is mandated by our disposition of the first assignment of error.
However, as relevant, to the instant case, Civ.R. 59(A) provides:
Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:
(1) Irregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial;
(2) Misconduct of the jury or prevailing party[.]
The decision whether to grant or deny a motion for a new trial is left to the discretion of the trial court. Dawson
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