I will occasionally discuss the law of Evidence on some things that often create major trial problems for the plaintiffs. A mistrial always favors the defense because they get a postponement. Today’s discussion is based on a rule of Evidence. Sometimes rules of law lead to unusual and bizarre results. This one reminds me of a Rule which led Mr. Bumble, a Charles Dicken’s character in Oliver Twist to declare: “If the law supposes that — then the law is a Ass.” Bumble was talking about the rule of law in Merry Olde England which assumed a man controlled, and was therefore responsible for his wife’s actions.
During trials involving traffic crashes there is one thing which is so explosive that the mere mention of it by either side in the presence of the jury will cause a mistrial. When a traffic accident case goes to trial, the jury always wants to know and expects someone to put on evidence : who got the ”TICKET?”
In Florida good trial lawyers do not make a proffer of any evidence on Traffic tickets. They intentionally do not say anything about a Ticket being issued during voir dire or opening statements and their witnesses are taught not to mention Tickets in front of the jury. When the rule gets violated, the judge should stop the trial and a new jury should be selected. Requesting a cautionary instruction to the jury is not a good idea and may waive the error. Check this out in a recent case on this point: White v Consolidated Freightways of Delaware, 766 So. 2d 1228 (Fla. 1st DCA 2000). Here is an excerpt from the appellate court decision which revealed a very subtle and reversible defense argument. The driver of an 18 wheeler, Mr. Dickson, rear ended a bunch of cars. The FHP officer did not give him a ticket. Here is an excerpt from the improper Defense opening statement which resulted in a reversal and a new trial:
“You’ll also hear the testimony of Investigating Highway Patrolman C.C. Barclay who looked at the physical evidence, he talked to everyone who was there; I think the evidence will show that no one claimed that Mr. Dickson had anything to do with this accident at the scene of the accident.
. . . .
After he was there for a while and had told the police officer what he saw, then he was allowed to proceed with his trip, and Mr. Dickson will tell you that the first time he heard that anybody was claiming that he had anything to do with this accident was long after, months after it occurred.”
It is not possible to tell if this was an honest oversight of the T-word rule by Defense counsel or a gamble that a motion for mistrial would not be made.
Lawyers know just like everyone else that a Ticket is symbolic of fault. If admitted it would tell the jury who in the opinion of the traffic cop caused the crash. Sometimes the cop witnessed the crash, but more likely got there a few minutes later and after asking around either decided to issue a ticket or not. His official act is seen as an objective third party point of view gathered promptly at the scene from witnesses whose recall is still fresh. Also, the court will instruct the jury that a violation of a traffic statute is possible evidence of negligence.
I had the misfortune of representing a client on a motorcycle who was seriously injured by an oncoming car. After the trial I got an irate call from the foreman: How come you did not put on evidence that the Defendant got a Ticket? I looked it up and you did not put on any evidence. If you had, we would have returned our verdict for your client.” I was crushed, and so was he. I told him I could not legally put on evidence and he had based his verdict on speculation, since there was no proof of a ticket, and held the Defendant Not Guilty.
Model jury instructions do not mention traffic tickets. In fairly obtuse wording the Florida Model court instruction 2.1 merely says to the jury they should not “speculate on any matters outside the evidence.” How does a juror know what that means? What does it mean? To a layman, a Ticket is inside the evidence and so it is ok to want information about it, and if it is not part of the trial, they think about it. I suggest the model instruction is defective because it is vague, and I have tried cases where a mistrial occurred because someone mentioned a Ticket. How many more were verdicts entered based on speculation? Who knows?
Generally the failure to testify in a civil action results in an inference that the testimony would have been unfavorable. There is a limitation on that rule that the “unfavorable inference which may be drawn from the failure of a party to testify is not warranted when there has been a sufficient explanation for such absence or failure to testify.” Plaintiffs are caught in a no man’s land about this because they cannot explain why they have not put on any evidence about the ticket.
Rule Regulating Florida Bar 4-3.4(e) prohibits lawyers from arguing facts that are not in evidence. Rule 4-3.5(a) prohibits lawyers from seeking to influence jurors except as permitted by law or the rules of court.
Sometimes it is a necessary to request a special instruction when the Model jury instructions are vague or simply do not cover the issue. A special instruction was requested (and then abandoned) in one case where a citation issue came up at trial here.
Many of the standard instructions were crafted before jurors were allowed to read instructions and the law was less complicated. There is a great discussion on using special instructions in Ryder TRS, Inc. v Hirsch, 900 So. 2d 608 (Fla. 4th DCA 2005). So long as they do not confuse or mislead the jury, the instruction is within the discretion of the trial court. Trouble is many Judges don’t like to give special instructions even if they are not confusing or misleading.I think the time has come in Florida to request a new special jury instruction in cases where a jury might reasonably expect evidence on the issue of whether a ticket has been issued. Here is my stab at a special jury instruction in these type of cases:
“You have been instructed not to speculate on any matters “outside the evidence.” That includes speculation about whether a traffic ticket or citation was or was not issued to any party in this case.”