Sunday, September 27, 2015

Preservation of jury charge errors | Paulding County criminal defense lawyer|

The preservation of jury charge errors in Georgia is dramatically different in criminal cases. First OCGA 5-5-24(a) requirement of exception is expressly inapplicable in the criminal context:

Except as otherwise provided in this code section, and all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returned its verdict, stating distinctly the matter to which he objects and the grounds for his objection. Opportunity shall be given to make the objection out of the hearing of the jury. Objection he not be made with the particularity formally required of assignments of error and need only be as reasonably definite as the circumstances will permit. This subsection shall not apply in criminal cases. In general, "defendants in a criminal case are not required to except to the jury charge to preserve error for appeal." The general rule in the state is that defendants in criminal cases are not required to except to the jury charge to preserve error for appeal. The right to raise an erroneous charge on appeal may be lost only in certain well-defined instances, as were defendants tactical trial plan justifies a finding of procedural default, state v stonacher, 236 Georgia 1 (1976). In these situations error in the charge was induced by the actions of defense counsel or defense counsel in response to an inquiry by the trial judge plainly states that he has no objections to the charges given. Generally speaking, it is reversible error to misstate the law that must be applied by the jury. In the Georgia system, when an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and the court will so hold unless it appears from the entire record that the error is harmless. Of course not all misstatements in the charge warrant reversal. Some mistakes do not alter the fundamental meaning of the charge. Assuming some verbal inaccuracy had existed in a contested charge, a new trial is not required when the inaccuracies in the charge do not mislead or obscure meaning. This is one application of the principle that a charge error is not reversible where it appears from the entire record that the error is harmless. Another example of a harmless charge error might be where the jury's findings on an issue that is not affected by the charge error render the charge error moot. This can occur where the charge error relates to the calculation of damages, but the jury found no liability. Where it is apparent that this charge was not applied any error that may have been committed was harmless. Generally speaking, the omission of the requested and applicable charge is reversible error in the Georgia appellate system. It is the duty of the court to charge the jury on the law as to every controlling, material, substantial and vital issue in the case. When the court fails to give the benefit of a theory of the defense which is sustained by the evidence, a new trial must be granted. What constitutes an omitted charge for the purpose of this rule? In order for a refusal to charge to be error, the request must be entirely correct and accurate, adjusted to the pleadings, law, and evidence and not otherwise covered in the general charge. Generally speaking, the omission of the requested and applicable charge is reversible error in the Georgia appellate system: it is the duty of the court to charge the jury on the law as to every controlling, material, substantial and vital issue in the case. Where the court fails to give the benefit of a theory of the defense which is sustained by the evidence, a new trial must be granted. The charges read as a whole and there is no error so long as all requested and relevant principles of law are communicated to the jury. Thus the appellant must show that the legal principle underlying the requested charge was not sufficiently or substantially covered by another charge. As a related principle, it is not error to refuse to use any particular language in the charge so long as the instructions given are correct and adequate. There is no requirement that a court instructs in the exact language of the request, even though the request may be correct as an abstract principle of law which is directly applicable to a material issue. Contact a Paulding County criminal defense lawyer today to handle your case.

The need to request a curative instruction | Paulding County criminal defense lawyer

When the court, in a colloquy with counsel makes remarks which are prejudicial or indicate an opinion upon the merits of the case, proper objection, or a motion for mistrial should be made at the time of the occurrence court; in the absence of timely objection or motion for mistrial the allegedly offensive matter cannot be urged for the first time as a ground in error proceedings. A party will not be permitted to allow the remarks to pass unchallenged until after the case is been submitted to the jury a verdict adverse to him returned, and then seek to avail himself of them in a reviewing court. It is well settled that statement by the court not made during the charge to the jury must be the subject of a timely exception in order to be reviewable, as the complaining party cannot remain silent and take his chances on a verdict in his favor without waiving his right to complain in the event the verdict is adverse. Where the court in a colloquy with counsel makes remarks which are prejudicial or intimate in opinion upon the merits of the case, proper objection, or motion for mistrial should be made at the time of the occurrence. In the absence of such objection, error cannot be assigned thereon for the first time in a motion for new trial. A motion for new trial cannot be based on judicial comments where no objection or motion for mistrial appears to have been made at the time the remark was allegedly made. A party claiming he has been prejudiced by trial judges expression of opinion during the course of the trial concerning what has been proved or the weight of the evidence, cannot raise this ground for the first time in a motion for new trial, but must make a motion for mistrial and give the trial judge an opportunity to correct any possible prejudicial effect of his remarks by appropriate instructions to the jury or other action. A contemporaneous objection or motion for mistrial is required to preserve error arising out of a judicial comment. One Court of Appeals opinion Speagle V. nationwide mutual fire insurance company 138 Georgia appeals 384 (1976) has held that unlike most other circumstances, error arising out of an improper judicial comment is preserved as the basis for seeking a new trial on appeal even where no mistrial or other curative action was requested. In other words, an objection alone is sufficient. The,court noted that in most other circumstances involving improper and prejudicial comments or arguments, a mere objection was not an objection to the action of the court as required for preservation under OCGA 9-11-46 but rather was an objection to an action of the witness or opposing counsel. It was not until the court declined to take some requested curative action that an action of the court occurred. Until that point there was no error of the trial court to which a mere objection could attach. Conversely, where the objection is to a comment by the court, that comment itself is the action of the court described in OCGA 9-11-46, and an objection alone is sufficient. The problem with the Spiegel court, is that if the error could be remedied by contemporaneous curative instruction, it seems unreasonable and wasteful of both parties and judicial resources to allow a party not to request such instruction, and then to later insist on a new trial because the unrequested curative instruction was not given. Where curative instruction would have sufficed, it is generally disfavored to grant a new trial where the objecting party did not at least request a curative instruction. Contact a Paulding County criminal defense lawyer today for help with your case in Paulding County.

Hire a Paulding County criminal defense lawyer today to help you with your case | Paulding county criminal defense lawyer

Any comment from the judge in the presence of the jury about what the evidence shows, the strength of the parties case or the credibility of a witness) (whether a negative or positive assessment of credibility) should be evaluated quickly for potential violation of the prohibition on judicial comments. This includes comments during the trial or during the charge. See Raol v.Newman 59 Georgia 408(1877) (judicial statement during the charge that certain facts are undisputed was reversible error requiring a new trial). See Alan V State 194 Georgia 178, (1942) stating the judge did not cure his error when he in his charge to the jury, told them that the statements he had made did not indicate that he had any opinion about the facts of the case, that he had no such opinion, and admonished the jury not to be influenced by any of the statements which he had made.) For example in Musket v. Sketchley Cleaners Inc., 297 Ga. App. 561 (2009),the Court of Appeals first found the comments did not violate OCGA 9-10-7, then held that "this is particularly true where, as here, the trial court charge to the jury after the close of evidence that anything the court had said or done during the course of the trial is not intended to imply or suggest which of the parties should prevail in the case." See Cline v. Lee 260 Georgia appeals 164 (2003), although the judge may have told the jury that they had properly listed all the elements of fraud, there is no evidence that the judge expressed an opinion as to whether those elements had been proved. Further, there is no contention that either the charge or the recharge misstated the law, and the trial court made clear that the recharge is not intended to place added emphasis on the fraud claim. Moreover, it is uncontroverted that in the original charge the trial court instructed the jury that nothing he did or said was intended to suggest in any way what the verdict should be. The purpose for this statute is to prevent the jury from being influenced, not to keep the judge for making up his own mind. As a jury was not present in the courtroom at the time of these questions, there was no violation of the above statute. If the judge makes statements as in Griffin V State 142 Georgia appeals 362 (1977), showing his personal doubts about a defense witness's credibility, the appellate courts will have no choice but to reverse the verdict.Contact a Paulding County Criminal defense lawyer with help on your case.

The Georgia prohibition on judicial comments| Paulding County criminal defense lawyer

The Georgia prohibition on judicial comments goes back to at least 1849 and the new statute that was passed by the Gen. assembly was OCGA 9-10-7 which currently provides as to civil cases, it is error for any judge, during the progress of any case, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved. Should any judge violate this code section, the violation shall be held by the Supreme Court or Court of Appeals to be error, the decision in the case shall be reversed, and the new trial shall be granted in the court below with such directions as the Supreme Court or the Court of Appeals may lawfully give. In 1850 the Gen. assembly also passed the predecessor to OCGA 17-8-57 which currently provides us to criminal cases, it is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. This of course makes a lot of sense as juries give a lot of credibility to what the trial judge believes or has to say. The problem is sometimes the trial judge doesn't say anything but makes facial expressions or movements that show opinion or disbelief. The jury is able to pick up on the subtle hints given by the trial judge and often times are persuaded. Based on the law this should not happen but what should a trial lawyer do when this is happening in a case he or she is trying? The answer that is to object and ask the judge to give a curative instruction to the jury. If the judge refuses it is important  to put everything on the record. This will preserve the issue on appeal. The Georgia judicial comments statute do not apply in federal court, even in diversity actions were Georgia law provides the rule of decision. The stringency of the Georgia prohibition on judicial comment is demonstrated by the mandatory provision in both OCGA 9-10-7 and OCGA 17-8-57 that a new trial shall be granted if the judicial comment occurs. Furthermore, at least in the context of criminal cases, it appears that corrective instructions, whereby the trial judge explains that he did not intend to express an opinion, may not be able to cure the presumptively harmful error. There are a number of civil cases indicating, without directly holding, that a curative instruction may preclude the grant of a new trial. Contact an experienced trial attorney, an attorney in Paulding County to represent you in your legal matters.

Saturday, September 26, 2015

Sufficient facts to bring an action and the defense of prematurity | Paulding County lawyer

A cause of action accrues when a legal right which is vested as distinguished from contingent or conditional in the plaintiff is violated by the defendant. However, if the right depends upon some condition or contingency, the cause of action accrues only from the fulfillment of that condition or happening of the contingency, and, if brought before, it is premature, And third parties have nothing to do with the matter. This particular defense is probably one of those which could be raised at the option of the pleader in his answer or by motion in writing based on failure to state a claim upon which relief can be granted. It should be observed, however, that the defense of prematurity should be asserted in some responsive pleading, otherwise it would be waived. No private right of action shall arise from any legislation enacted after July 1, 2010 unless such right is expressly provided therein. Under OCGA 9-11-15, the court may upon proper motion permit a party to set forth in supplemental pleadings facts occurring subsequent to the filing of the original pleading. This will not of course affect the requirement that a complete cause of action exist before the commencement of an action. If insufficient facts exist at the outset, the action will still be subject to dismissal for failure to state a claim. Contact a Paulding County attorney if you have sufficient facts to support a claim and contact a Paulding County lawyer if you have been sued and the other side does not have sufficient facts to bring the matter to court.

What kind of civil action ? | Paulding County lawyer

A civil action is Paulding County one founded on private rights arising either from contract or tort. An action ex contractu is an action based upon contract. The term relates to the nature of the cause of action rather than to the form of remedy for its enforcement. It is immaterial whether the action partakes of the nature of the legal or an equitable cause. It need not necessarily be founded upon an express contract, thus where property is unlawfully converted under such circumstances as to amount to a larceny, an action to recover the value of such property partakes of the nature of an action ex contractu upon an implied promise to pay for it. An action ex delicto on the other hand, is an action arising out of or partaking the nature of a tort. The term defined by the process of exclusion embraces all those actions whose foundation rests upon the failure of a person to perform a duty which is not imposed upon him by contract, but by law, or, although imposed by contract, such imposition is only cumulative to those duties which are already imposed by law. An example of the latter situation would be duties imposed by law upon common carriers a passengers, which are also imposed upon the latter by express contract between the two. In both of these situations the cause of action is ex delicto, unless in the latter situation, the plaintiff disregards the duties imposed by law and chooses as the basis of his right the breach of the duties imposed by the contract, in which case his cause of action is ex contractu. An action in personam, as distinguished from an action against one thing or an action in Rem, is defined as an action against the person, founded on a personal liability.

A statutory action is one based upon a statute which created or authorized it, as distinguished from a common-law action which is allowed by the common-law. Common-law actions are those which were adopted from the English common law in force at the time the state became independent, being such as were suited to our conditions, and which have not since been abolished by statute. In some instances statutory and common law remedies are cumulative. A statute creating a new remedy for an existing right does not take away the pre-existing remedy, without express words are necessary implications. Consequently, either may be pursued, the new remedy being simply cumulative. However, when the statute gives a right or remedy which did not exist at common law, and provides a specific method of enforcing it, the mode of procedure provided by the statute is exclusive and must be pursued strictly.   An action at law is an action asking only legal relief such as damages for breach of contract, as distinguished from a suit in equity asking for equitable relief, such as an injunction, rescission, etc. In Georgia, bills and equity and all distinctions of actions into real, personal, and mixed, are abolished. However, the superior courts, on the trial of any civil case, shall give effect to all the rights of the parties, legal, equitable, or both, and apply remedies or relief, legal, equitable, or both, in favor of either party as the nature of the case may allow or require. Contact a Paulding County lawyer today for help regarding your civil case.