Sunday, September 27, 2015
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.