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.