GA Code § 9-10-185 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 10 - Civil Practice and Procedure Generally|Article 8 - Argument and Conduct of Counsel|§ 9-10-185. Prejudicial Statements by Counsel; Prevention by Court; Rebuke of Counsel and Instruction to Jury; Mistrial

 Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds. In its discretion, the court may order a mistrial if the plaintiff's attorney is the offender.   (Civil Code 1895, § 4419; Civil Code 1910, § 4957; Code 1933, § 81-1009.)   Cross references.   - Effect of judge's expression to jury of opinion of factual issue or expression of approval or disapproval of jury verdict, §§ 9-10-7,9-10-8.    Similar provision pertaining to criminal actions, § 17-8-75.   Law reviews.   - For note, "Argument of Counsel," see 1 Ga. L. Rev. No. 1 p. 44 (1927).   JUDICIAL DECISIONS    Former Code 1933, § 81-1009 (see O.C.G.A. § 9-10-185) has not been repealed by Ga. L. 1966, p. 609, § 85 (see O.C.G.A. Ch. 11, T. 9); it is the law of this state. Moorehead v. Counts, 130 Ga. App. 453, 203 S.E.2d 553 (1973), aff'd, 232 Ga. 220, 206 S.E.2d 40 (1974).    Former Code 1933, § 81-1009 (see O.C.G.A. § 9-10-185) has been modified by Ga. L. 1966, p. 609, § 46 (see O.C.G.A. § 9-11-46(b)); the trial court in a civil case may, upon the motion of either party, grant a mistrial for improper remarks of counsel. Counts v. Moorehead, 232 Ga. 220, 206 S.E.2d 40 (1974).    It is duty of trial court to control trial of the case and to ensure fair trial to both sides on the disputed issues in the case, thus sometimes requiring interference by the court with the conduct of counsel or with a witness in the trial, and the trial court has broad discretion in the handling of such matters. Stephen W. Brown Radiology Assocs. v. Gowers, 157 Ga. App. 770, 278 S.E.2d 653 (1981).    This section makes it duty of trial judge to interpose and prevent making by counsel of statements of prejudicial matters not in evidence in the hearing of the jury; this rule likewise applies to the examination of witnesses by counsel. Johnson v. Cook, 123 Ga. App. 302, 180 S.E.2d 591 (1971) (see O.C.G.A. § 9-10-185).    This section imposes duty on judge to rebuke prejudicial statements, when timely objection is made. Southern Marble Co. v. Pinyon, 144 Ga. 259, 86 S.E. 1086 (1915) (see O.C.G.A. § 9-10-185).    Improper conduct may be corrected by an open rebuke and instructions to the jury. Robinson & Co. v. Stevens, 93 Ga. 535, 21 S.E. 96 (1894).    Judge may rebuke prejudicial statements to prevent argument on facts not in evidence. Bulloch v. Smith, 15 Ga. 395 (1854); Doster v. Brown, 25 Ga. 24, 71 Am. Dec. 153 (1858); Forsyth v. Cothran, 61 Ga. 278 (1878).    Flights of oratory and false logic do not call for mistrials or rebuke; it is the introduction of facts not in evidence that requires the application of such remedies. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384 (1935); Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313 (1957).   Conduct of party or counsel subject to legitimate comment.    - What has transpired in a case from its inception to its conclusion, and the conduct of the party or counsel with respect to the case, are the subject of legitimate comment. Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313 (1957).   Permissible to draw deductions from evidence regardless of their absurdity.    - While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw deductions from the evidence, and the fact that the deductions may be illogical, unreasonable, or even absurd, is matter for reply by adverse counsel and not for rebuke by the court. Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313 (1957).    Fact that deductions are illogical is a matter for reply by adverse counsel, and not for rebuke by the court. Gray v. Cole, 20 Ga. 203 (1856); Seaboard Air-Line Ry. v. Horning, 18 Ga. App. 396, 89 S.E. 493 (1916).   Remarks not introducing facts undisclosed by the evidence not improper.    - Remarks of counsel while addressing the jury which do not undertake to introduce any material fact not disclosed by the evidence do not constitute improper argument. Continental Cas. Co. v. Wilson-Avery, Inc., 115 Ga. App. 793, 156 S.E.2d 152 (1967).    There is nothing wrong in counsel's reading the law of the case as adjudicated upon its previous appearance in the Court of Appeals. City of Commerce v. Bradford, 94 Ga. App. 284, 94 S.E.2d 160 (1956).    Inferences not warranted by evidence should not be indulged in by counsel in their arguments to the jury. McGhee v. Minor, 188 Ga. 635, 4 S.E.2d 565 (1939).    This section forbids the introduction, by way of argument, of facts not in the record and calculated to prejudice the accused. Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313 (1957) (see O.C.G.A. § 9-10-185).   Comment on facts not in evidence improper.    - For counsel, in arguing case, to comment upon facts not in evidence before the jury is highly improper. Georgia A. Ry. v. Pound, 111 Ga. 6, 36 S.E. 312 (1900). See also Georgia M. and G.R.R. v. Evans, 87 Ga. 673, 13 S.E. 580 (1891).   Improper argument not to be answered in kind.    - Improper remark of counsel is no excuse for an improper reply thereto, where no objection was made against the latter. Higgins v. Cherokee R.R., 73 Ga. 149 (1884).    The fact that counsel for one party has used improper argument to the jury will not justify or authorize counsel for the opposing party to do likewise, under the principle of law that injuria non excusat injuriam. Banks v. Kilday, 88 Ga. App. 307, 76 S.E.2d 642 (1953).    Improper remarks of counsel are subject to correction either by proper instruction to jury or a mistrial, according to the nature of the remarks and the circumstances under which they were made. Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 181 S.E. 315 (1935).    Merely ruling out improper statements of counsel in argument to jury is insufficient to cure the injury; it is the duty of the court, on objection, to rebuke counsel. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384 (1935).   Rebuke of counsel sufficient where misconduct not so gross as to require mistrial.    - If the misconduct is not so gross, in the opinion of the court, as to require a mistrial, it is generally within the discretion of the court to rebuke counsel and to forbid counsel to persist therein; to instruct the jury not to allow the same to have any effect against the opposite party is an option of the court. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384 (1935).    This section does not require one corrective action or the other - it requires both corrective actions by the court; the court shall rebuke counsel, and, in addition, shall by all needful and proper instructions to the jury endeavor to remove the improper impressions from the jury's mind. Moorehead v. Counts, 130 Ga. App. 453, 203 S.E.2d 553 (1973), aff'd, 232 Ga. 220, 206 S.E.2d 40 (1974) (see O.C.G.A. § 9-10-185).   Proper instruction may amount to rebuke.    - To rebuke counsel and endeavor to remove the improper impression from jurors' minds are not necessarily independent actions; where the instruction by the court to the jury to disregard the remarks was full, it in effect amounts to a rebuke of counsel. Counts v. Moorehead, 232 Ga. 220, 206 S.E.2d 40 (1974); A.W. Easter Constr. Co. v. White, 137 Ga. App. 465, 224 S.E.2d 112 (1976).   Presumption is that court properly rebuked counsel absent contrary evidence in record.    - Where counsel's remarks were grossly improper, it was the duty of the court to rebuke counsel and require counsel to desist and to warn the jury to disregard them, but if it does not appear from the record that the court failed to do this, the court cannot assume that there was any omission in this respect; the presumption is that the court did its duty. McCluskey v. AMOCO, 225 Ga. 63, 165 S.E.2d 830 (1969).   Rebuking counsel and properly instructing jury not discretionary.    - While, under this section, where counsel is guilty of improper conduct and a motion for mistrial is made, the court should take corrective measures, whether or not the motion should be granted is largely in its discretion, but its failure to "rebuke counsel, and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds" is error. Atlantic Coast Line R.R. v. Coxwell, 93 Ga. App. 159, 91 S.E.2d 135 (1955) (see O.C.G.A. § 9-10-185).   Sufficiency of instructions to be determined under facts of each case.    - No fixed rule may be laid down as to when conduct or improper remarks of counsel are or are not sufficiently corrected by instructions of the court to the jury to disregard them, as this must be determined under the particular facts and circumstances of each case. Interstate Life & Accident Co. v. Brewer, 56 Ga. App. 599, 193 S.E. 458 (1937).    Whether court takes sufficient steps to remove improper matters from minds of jury is frequently a question of degree to be decided under the circumstances of the case. Howard v. Renfroe, 93 Ga. App. 59, 90 S.E.2d 598 (1955).    While remark of counsel for plaintiff was improper, instructions of court to jury were sufficient to authorize the holding, in the court's discretion, that the improper impression had been removed from the minds of the jury, and the court's denial of the motion for mistrial was not error. Banks v. Kilday, 88 Ga. App. 307, 76 S.E.2d 642 (1953).   Appellant received proper relief where judge instructed jury per appellant's request.    - Where the record shows that the appellant requested the court to instruct the jury to disregard a prejudicial remark, and the judge did so, the appellant is afforded the relief provided under this section. Wilhite v. Mays, 140 Ga. App. 816, 232 S.E.2d 141 (1976), aff'd, 239 Ga. 31, 235 S.E.2d 532 (1977) (see O.C.G.A. § 9-10-185).    New trial will not generally be granted where court warns counsel to confine counsel's argument to the evidence and issues in the case, and instructs the jury to disregard the improper statements of counsel. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384 (1935).    Some matter is so inflammatory that its effect cannot be removed, and mistrial must be granted. Howard v. Renfroe, 93 Ga. App. 59, 90 S.E.2d 598 (1955).   Mistrial proper only where other remedies insufficient.    - Allusions to a matter extrinsic to the record by counsel in the argument of a case will not constrain the court to declare a mistrial in every instance; it is only when the foreign matter injected into the case by the argument is of such a prejudicial nature that a rebuke of the statement by counsel and an instruction to the jury will be insufficient to remove any improper impressions from the minds of the jurors that a mistrial should be declared. Chunn v. McRae, 43 Ga. App. 417, 159 S.E. 130 (1931).   Request for mistrial proper where remarks considered extremely prejudicial.    - If the remarks are considered so prejudicial that their effect upon the jury cannot be counteracted, the party aggrieved may request that the case be withdrawn from the jury and a mistrial declared. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384 (1935).   New trial granted where court fails to apply corrective measures on request.    - If statements of fact or comments unjustified by the evidence are made by counsel, and it is apparent that the impropriety may be prejudicial to the opposite party, and yet the court takes no action to apply any corrective measure though requested to do so, a new trial will be granted. Georgia Power Co. v. Puckett, 181 Ga. 386, 182 S.E. 384 (1935).   Circumstances considered in reversing overruling of motion for mistrial.    - Where instructions regarding improper statements by counsel are given, the overruling of the motion for mistrial will not be reversed unless (a) the instructions were insufficient for the purpose, or (b) the violation was so flagrant and the error so prejudicial that no instructions whatever would have been sufficient, and the judgment overruling the motion therefore constitutes an abuse of discretion. Collins v. Porterfield, 102 Ga. App. 294, 116 S.E.2d 105 (1960).    Party cannot during trial ignore what the party thinks to be an injustice, take the party's chance on a favorable verdict, and complain later. Wright v. Wright, 222 Ga. 777, 152 S.E.2d 363 (1966).   ANALYSIS    Cited in Sims v. Ferrill, 45 Ga. 585 (1872); Williams & Co. v. Hart, 65 Ga. 201 (1880); Bailey & Co. v. Ogden, 75 Ga. 874 (1885); Towner v. Thompson, 82 Ga. 740, 9 S.E. 672 (1889); Harrison v. Langston & Woodson, 100 Ga. 394, 28 S.E. 162 (1897); Collins Park & B.R.R. v. Ware, 112 Ga. 663, 37 S.E. 975 (1901); Southern Ry. v. Brown, 126 Ga. 1, 54 S.E. 911 (1906); Macon & B. Ry. v. Parker, 127 Ga. 471, 56 S.E. 616 (1907); Western & A.R.R. v. York, 128 Ga. 687, 58 S.E. 183 (1907); Southern Ry. v. Wright, 6 Ga. App. 172, 64 S.E. 703 (1909); Gate City Term. Co. v. Thrower, 136 Ga. 456, 71 S.E. 903 (1911); Knowles v. Dayries Rice Co., 10 Ga. App. 567, 73 S.E. 856 (1912); Pelham & H.R.R. v. Elliott, 11 Ga. App. 621, 75 S.E. 1062 (1912); Shippen Bros. Lumber Co. v. Jones, 141 Ga. 683, 81 S.E. 1113 (1914); Hope v. First Nat'l Bank, 142 Ga. 310, 82 S.E. 929 (1914); Central Ga. Power Co. v. Cornwell, 143 Ga. 9, 84 S.E. 67 (1915); Mayor of Americus v. Gammage, 15 Ga. App. 805, 84 S.E. 144 (1915); Davies v. Hearn, 45 Ga. App. 276, 164 S.E. 273 (1932); A.G. Boone Co. v. Owens, 54 Ga. App. 379, 187 S.E. 899 (1936); Atlanta Joint Terms. v. Knight, 98 Ga. App. 482, 106 S.E.2d 417 (1958); Atlantic Coast Line R.R. v. McDonald, 103 Ga. App. 328, 119 S.E.2d 356 (1961); Purcell v. Hill, 220 Ga. 663, 141 S.E.2d 152 (1965); Lanier v. Lee, 111 Ga. App. 876, 143 S.E.2d 487 (1965); Usry v. Bostick, 112 Ga. App. 76, 143 S.E.2d 781 (1965); DeFreese v. Beasley, 114 Ga. App. 832, 152 S.E.2d 772 (1966); American Oil Co. v. McCluskey, 118 Ga. App. 123, 162 S.E.2d 853 (1968); Ashley v. Standard Oil Co., 119 Ga. App. 786, 168 S.E.2d 656 (1969); Georgia Power Co. v. Slappey, 121 Ga. App. 534, 174 S.E.2d 361 (1970); McLemore v. Andrika, 121 Ga. App. 527, 174 S.E.2d 371 (1970); Eller v. Walker, 122 Ga. App. 877, 179 S.E.2d 105 (1970); Corvair Furn. Mfg. Co. v. Bull, 125 Ga. App. 141, 186 S.E.2d 559 (1971); Butts v. Davis, 126 Ga. App. 311, 190 S.E.2d 595 (1972); Brand v. Wofford, 230 Ga. 750, 199 S.E.2d 231 (1973); Seaboard Coast Line R.R. v. Smith, 131 Ga. App. 288, 205 S.E.2d 888 (1974); Town Fin. Corp. v. Hughes, 134 Ga. App. 337, 214 S.E.2d 387 (1975); Georgia Mut. Ins. Co. v. Willis, 140 Ga. App. 225, 230 S.E.2d 363 (1976); Insurance Co. v. Dills, 145 Ga. App. 183, 243 S.E.2d 549 (1978); Johnson v. State, 164 Ga. App. 501, 297 S.E.2d 38 (1982); Harbin v. State, 165 Ga. App. 631, 302 S.E.2d 386 (1983); Wilbanks v. State, 165 Ga. App. 876, 303 S.E.2d 144 (1983); Green v. Jones, 254 Ga. 35, 326 S.E.2d 448 (1985); Trout v. Harrison, 188 Ga. App. 246, 372 S.E.2d 651 (1988); Kapsch v. Stowers, 209 Ga. App. 767, 434 S.E.2d 539 (1993).   Discretion   Objections   Application    RESEARCH REFERENCES   Am. Jur. 2d.   - 75A Am. Jur. 2d, Trial, § 648 et seq.   C.J.S.   - 88 C.J.S., Trial, § 320 et seq.   ALR.    - Counsel's appeal to racial, religious, social, or political prejudices or prejudice against corporations as ground for a new trial or reversal, 78 A.L.R. 1438.    Motion for mistrial, or other similar motion, as condition of reviewing improper argument of counsel, 108 A.L.R. 756.    Offering improper evidence, or asking improper question, as ground for new trial or reversal, 109 A.L.R. 1089.    Reference by counsel in opening statement in civil case to matters which he does not attempt to prove as ground for new trial or reversal, 118 A.L.R. 543.    Statements, comments, or conduct of court or counsel regarding perjury, as ground for new trial or reversal in civil action or criminal prosecution other than for perjury, 127 A.L.R. 1385.   Prejudicial effect of argument or remark that adversary was attempting to suppress facts, 29 A.L.R.2d 996.   Counsel's appeal in civil case to wealth or poverty of litigants as ground for mistrial, new trial, or reversal, 32 A.L.R.2d 9.   Prejudicial effect in civil trial of counsel's misconduct in physically exhibiting to jury objects or items not introduced as evidence, 37 A.L.R.2d 662.   Prejudicial effect of trial court's denial, or equivalent, of counsel's right to argue case, 38 A.L.R.2d 1396.   Prejudicial effect of counsel's addressing individually or by name particular juror during argument, 55 A.L.R.2d 1198.   Counsel's right in civil case to argue law or to read law books to the jury, 66 A.L.R.2d 9.   Prejudicial effect of counsel's remarks, in opening statement in personal injury action, as to plaintiff's family circumstances, number of children, or the like, 68 A.L.R.2d 990.   Prejudicial effect in counsel's opening statement in civil case, of remarks disparaging opposing counsel, opponent, or opponent's case or witnesses, 68 A.L.R.2d 999.   Comment, in argument of civil case, on adversary's failure to call employee as witness, 68 A.L.R.2d 1072.   Prejudicial effect of counsel's argument, in civil case, urging jurors to place themselves in the position of litigant or to allow such recovery as they would wish if in the same position, 70 A.L.R.2d 935.   Prejudicial effect in civil trial of counsel's use during summation, of a litigant for a physical demonstration as to how the accident or incident happened, 74 A.L.R.2d 1094.   Counsel's use, in trial of condemnation proceeding, of chart, diagram or blackboard, not introduced in evidence, relating to damages or the value of the property condemned, 80 A.L.R.2d 1270.   Prejudicial effect of remarks of trial judge criticizing counsel in civil case, 94 A.L.R.2d 826.   Prejudicial effect, in argument or summation in civil case, of attacks upon opposing counsel, 96 A.L.R.2d 9.   Propriety and prejudicial effect of argument or comment by counsel as to settlement negotiations during trial of personal injury action, 99 A.L.R.2d 737.   Statement by counsel relating to race, nationality, or religion in civil action as prejudicial, 99 A.L.R.2d 1249.   Right to withdraw motion for mistrial, 100 A.L.R.2d 375.   Propriety and prejudicial effect of counsel's argument or comment as to trial judge's refusal to direct verdict against him, 10 A.L.R.3d 1330.   Propriety and prejudicial effect of reference by plaintiff's counsel, in jury trial of personal injuries or death action, to amount of damages claimed or expected by his client, 14 A.L.R.3d 541.   Propriety and prejudicial effect of reference by counsel in civil case to result of former trial of same case, or amount of verdict therein, 15 A.L.R.3d 1101.   Propriety and prejudicial effect of reference by counsel in civil case to amount of verdict in similar cases, 15 A.L.R.3d 1144.   Propriety and effect, in eminent domain proceedings, of argument or evidence as to source of funds to pay for property, 19 A.L.R.3d 694.   Admissibility of evidence of, or propriety of comment as to, plaintiff spouse's remarriage, or possibility thereof, in action for damages for death of other spouse, 88 A.L.R.3d 926.   Counsel's appeal in civil case to self-interest or prejudice of jurors as taxpayers, as ground for mistrial, new trial, or reversal, 93 A.L.R.3d 556.   Propriety and prejudicial effect of comments by counsel vouching for credibility of witness - state cases, 45 A.L.R.4th 602.   Use of plea bargain or grant of immunity as improper vouching for credibility of witness - state cases, 58 A.L.R.4th 1229.   Counsel's argument or comment stating or implying that defendant is not insured and will have to pay verdict himself as prejudicial error, 68 A.L.R.4th 954.   Prejudicial effect of bringing to jury's attention fact that plaintiff in personal injury or death action is entitled to workers' compensation benefits, 69 A.L.R.4th 131.   Propriety and prejudicial effect of trial counsel's reference or suggestion in medical malpractice case that defendant is insured, 71 A.L.R.4th 1025.   Attorney's argument as to evidence previously ruled inadmissible as contempt, 82 A.L.R.4th 886.   Prejudicial effect, in civil case, of communications between judges and jurors, 33 A.L.R.5th 205.