There are many reasons a Trial Court may not allow attorneys to present evidence to Jurors—perhaps because it’s not relevant, because there’s no foundation, because it’s too prejudicial given the case. But just because evidence is withheld from evidence does not mean that evidence does not exist—and that an attorney must be careful with what they argue in Court. Case in point: this recent decision Jackson v. Park (July 27, 2021) from the Court of Appeal, Second District, Division 7, California, 2021 WL 3162526.
The quick facts:
Defendant driver hits Plaintiff and Police arrest Defendant for DUI. Breathalyzer results are over a 0.15 (almost double the legal limit of 0.08). The Criminal Court convicts Defendant but at this personal injury trial, that Judge “excluded evidence of [Defendant’s] arrest and conviction.” What about the breathalyzer and any objective signs of intoxication and field tests? The Court excluded the breathalyzer absent foundation (which none was proven, so it was excluded) but held Plaintiff “should be entitled to make the case for intoxication based on the evidence that exists outside of the blood alcohol test[.]”
The record gets a little muddy where the Police Officer testified there was an arrest and the Court gives a curative instruction to the Jurors: “Powell mentioned the word ‘arrest’ in his testimony. There is no evidence of an arrest and there will be none. Secondly, Officer Powell mentioned [a] certain blood level of alcohol in his testimony. In this case, there is no evidence of Mr. Park’s blood level and there will be none. Okay. I want you to know that those pieces of evidence, I’m instructing you, those statements are not to be considered by you and it should be considered as if it did not happen.”
Fast forward to closing arguments.
The Judge instructs the Jury (per jury instruction CACI 203, re a party having power to produce better evidence) “[y]ou may consider the ability of each party to provide evidence. If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence.’”
With that, Defense Counsel argues away: “There is zero evidence of arrest, BAC, or [c]onviction; the only evidence in the case regarding alcohol consumption before this accident was suspicion by Ofc. Powell…. No definitive evidence of intoxication, only evidence of a subjective test regarding physical activities a tired [Defendant] allegedly failed at 3:30 a.m.”
Does this cross the line?
Yes, yes it does. “It is improper for counsel to assert or imply facts not in evidence that counsel knows excluded evidence could refute.” The Court here also determined Defense Counsel’s actions to be misconduct.
Also, Defense argument stretched beyond the Judge’s curative instruction: “After repeating the court’s admonition, defense counsel told the jury ‘the judge has instructed that nothing beyond the suspicion by Officer Powell is involved.’ This argument both grossly misrepresented the court’s admonition and improperly infused defense counsel’s misleading argument with the authority of the court.”
In the end, the Judge grants Plaintiff a new trial and found that “defense counsel’s arguments about the alcohol evidence constituted misconduct.”