43
Fla. L. Weekly D138a
Fla. L. Weekly D138a
Torts
— Jury — Voir dire — Trial court did not err in granting new trial based on
court’s failure to allow defendants to question several members of jury venire
before they were excused for bias
— Jury — Voir dire — Trial court did not err in granting new trial based on
court’s failure to allow defendants to question several members of jury venire
before they were excused for bias
HEATHER IRIMI, as Personal
Representative of the ESTATE OF DALE MOYER, Appellant, v. R.J. REYNOLDS TOBACCO
COMPANY, et al., Appellees. 4th District. Case No. 4D15-759. January 10, 2018.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward
County; John J. Murphy, III, Judge; L.T. Case Nos. 08-80000 (19) and
08-CV-026337 (19). Counsel: Jonathan R. Gdanski of Schlesinger Law Offices,
P.A., Fort Lauderdale, and Bard D. Rockenbach and Adam Richardson of Burlington
& Rockenbach, P.A., West Palm Beach, for appellant. Jason T. Burnette of
Jones Day, Atlanta, GA, and Karen H. Curtis of Clarke Silverglate, P.A., Miami,
for appellees.
Representative of the ESTATE OF DALE MOYER, Appellant, v. R.J. REYNOLDS TOBACCO
COMPANY, et al., Appellees. 4th District. Case No. 4D15-759. January 10, 2018.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward
County; John J. Murphy, III, Judge; L.T. Case Nos. 08-80000 (19) and
08-CV-026337 (19). Counsel: Jonathan R. Gdanski of Schlesinger Law Offices,
P.A., Fort Lauderdale, and Bard D. Rockenbach and Adam Richardson of Burlington
& Rockenbach, P.A., West Palm Beach, for appellant. Jason T. Burnette of
Jones Day, Atlanta, GA, and Karen H. Curtis of Clarke Silverglate, P.A., Miami,
for appellees.
On
Motion for Rehearing and Rehearing En Banc
Motion for Rehearing and Rehearing En Banc
(MAY, J.) We deny the motion for
rehearing and rehearing en banc, but withdraw our prior opinion and substitute
the following in its place.
rehearing and rehearing en banc, but withdraw our prior opinion and substitute
the following in its place.
“The right to ask potential jurors
questions during voir dire about bias remains one of the most important, and
often overlooked, protections against jury discrimination.” Tania Tetlow,
Granting Prosecutors Constitutional Rights to Combat Discrimination, 14 U. Pa. J.
Const. L. 1117, 1143 (2012). That protection is challenged in this appeal from
an order granting a new trial.
questions during voir dire about bias remains one of the most important, and
often overlooked, protections against jury discrimination.” Tania Tetlow,
Granting Prosecutors Constitutional Rights to Combat Discrimination, 14 U. Pa. J.
Const. L. 1117, 1143 (2012). That protection is challenged in this appeal from
an order granting a new trial.
The plaintiff argues the trial court
erred in granting a new trial based on the court’s failure to allow the
defendants to question several members of the jury venire before excusing them
for bias. She also asks us to limit any new trial to the issue of entitlement
to punitive damages in the event that we affirm the order granting a new trial.
We disagree on both points and affirm.
erred in granting a new trial based on the court’s failure to allow the
defendants to question several members of the jury venire before excusing them
for bias. She also asks us to limit any new trial to the issue of entitlement
to punitive damages in the event that we affirm the order granting a new trial.
We disagree on both points and affirm.
At the start of jury selection, the
court gave the venire an abbreviated statement of the case informing them that
the plaintiff claimed the decedent’s death was caused by smoking cigarettes,
and that the tobacco defendants denied the claim. During voir dire, plaintiff’s
counsel asked:
court gave the venire an abbreviated statement of the case informing them that
the plaintiff claimed the decedent’s death was caused by smoking cigarettes,
and that the tobacco defendants denied the claim. During voir dire, plaintiff’s
counsel asked:
And so we
all come in with certain feelings about cigarettes, certain feelings about
smokers; and what I would like to know is, without hearing anything more than
that, is there anybody here — and I want to go in groups again — but by a show
of hands, anybody who thinks that a person who smokes cigarettes for a long
period of time, say 40 or 50 years, gets a disease and ultimately dies from
that disease, is there anybody that thinks that their family should not be
allowed to bring a lawsuit against the tobacco companies?
all come in with certain feelings about cigarettes, certain feelings about
smokers; and what I would like to know is, without hearing anything more than
that, is there anybody here — and I want to go in groups again — but by a show
of hands, anybody who thinks that a person who smokes cigarettes for a long
period of time, say 40 or 50 years, gets a disease and ultimately dies from
that disease, is there anybody that thinks that their family should not be
allowed to bring a lawsuit against the tobacco companies?
Several jurors raised their hands.
Plaintiff’s counsel then asked each juror individually if their belief was
strongly held, and if they had a reasonable doubt whether they could set that
feeling aside. Before the trial court recessed for lunch, defense counsel asked
the court to “admonish the panel if they have a strongly held view about some
of these issues, to raise their hand so that we can address it in private, as
opposed to sharing it with the whole group[.]” The court took the matter under
advisement, but later overruled the objection.
Plaintiff’s counsel then asked each juror individually if their belief was
strongly held, and if they had a reasonable doubt whether they could set that
feeling aside. Before the trial court recessed for lunch, defense counsel asked
the court to “admonish the panel if they have a strongly held view about some
of these issues, to raise their hand so that we can address it in private, as
opposed to sharing it with the whole group[.]” The court took the matter under
advisement, but later overruled the objection.
When jury selection resumed, and
before defense counsel had an opportunity to question the jurors, the following
transpired.
before defense counsel had an opportunity to question the jurors, the following
transpired.
The
Court: Counsel, I don’t know where we go
from here, to be candid with you. The state of the law in Florida as I
understand it, and you can correct me, I don’t see how you rehabilitate certain
jurors.
Court: Counsel, I don’t know where we go
from here, to be candid with you. The state of the law in Florida as I
understand it, and you can correct me, I don’t see how you rehabilitate certain
jurors.
And I know
we’re trying to get a panel. We have a big panel here. I think, and I know the
question was objected to. But I think it’s a fairly innocuous question when the
juror is asked if they believe a smoker or a family of a deceased smoker has a
right to sue, and it’s followed up by is that a strongly held belief, and is
that something you can set aside.
we’re trying to get a panel. We have a big panel here. I think, and I know the
question was objected to. But I think it’s a fairly innocuous question when the
juror is asked if they believe a smoker or a family of a deceased smoker has a
right to sue, and it’s followed up by is that a strongly held belief, and is
that something you can set aside.
I don’t
see how you can rehabilitate those jurors. The flip side of the coin would be
if the defense comes up and their question, you know, is that same type of
question; how many of you believe that if a tobacco company is involved selling
cigarettes and somebody has a tobacco-related disease, you know, alleged from
smoking, that it’s just a question of how much you would ask for damages.
see how you can rehabilitate those jurors. The flip side of the coin would be
if the defense comes up and their question, you know, is that same type of
question; how many of you believe that if a tobacco company is involved selling
cigarettes and somebody has a tobacco-related disease, you know, alleged from
smoking, that it’s just a question of how much you would ask for damages.
I think
the other side of the coin is fair game as well, and they would be excused
automatically. I just don’t know how you can rehabilitate jurors who answer
that question. And I know the defense hasn’t even asked one question of the
jury. But I don’t know how you — assuming that you ask them if there’s a
reasonable doubt in the mind of the Court, they’re going to be excused. I don’t
see how you can rehabilitate those jurors. It would be my thought just to
excuse them.
the other side of the coin is fair game as well, and they would be excused
automatically. I just don’t know how you can rehabilitate jurors who answer
that question. And I know the defense hasn’t even asked one question of the
jury. But I don’t know how you — assuming that you ask them if there’s a
reasonable doubt in the mind of the Court, they’re going to be excused. I don’t
see how you can rehabilitate those jurors. It would be my thought just to
excuse them.
Defense
Counsel: Well, Your Honor, first off, I
think you’re right about your understanding of rehabilitation and the
availability of it under Florida law.
Counsel: Well, Your Honor, first off, I
think you’re right about your understanding of rehabilitation and the
availability of it under Florida law.
Our
position is pretty simple. We just want a shot to examine the whole panel. It’s
not that we think Mr. Hammer may have succeeded in making a cause record for
this morning could be rehabilitated. But it’s just the interplay of all the
different individuals is something that helps our examination as a whole.
position is pretty simple. We just want a shot to examine the whole panel. It’s
not that we think Mr. Hammer may have succeeded in making a cause record for
this morning could be rehabilitated. But it’s just the interplay of all the
different individuals is something that helps our examination as a whole.
I think
you’re right, Your Honor, and there were certainly some people this morning who
articulated views that cannot be rehabilitated. Our preference is to leave the
whole panel intact so that we get a chance at least to talk to the whole
venire, with the acknowledgment that obviously some people have expressed views
already for which a record has been made. They probably do have a bias that
would result in exclusion.
you’re right, Your Honor, and there were certainly some people this morning who
articulated views that cannot be rehabilitated. Our preference is to leave the
whole panel intact so that we get a chance at least to talk to the whole
venire, with the acknowledgment that obviously some people have expressed views
already for which a record has been made. They probably do have a bias that
would result in exclusion.
Plaintiff’s
Counsel: If it please the Court, Your
Honor, I understand defense counsel’s request, and I don’t disagree with his
requesting the right to discuss this with the panel as a whole. I understand
that. I’m only concerned with the Court’s interest in getting the jury.
Counsel: If it please the Court, Your
Honor, I understand defense counsel’s request, and I don’t disagree with his
requesting the right to discuss this with the panel as a whole. I understand
that. I’m only concerned with the Court’s interest in getting the jury.
As far as
time is concerned, and the likelihood of having enough jurors in this panel, if
we can’t get a jury out of this panel, is there any way where we can get
another handful of jurors to back this group up?
time is concerned, and the likelihood of having enough jurors in this panel, if
we can’t get a jury out of this panel, is there any way where we can get
another handful of jurors to back this group up?
Because by
my counts, we’re treading on somewhere under 50 remaining jurors right now,
based on those that volunteered in a way that is likely to be subject to cause.
my counts, we’re treading on somewhere under 50 remaining jurors right now,
based on those that volunteered in a way that is likely to be subject to cause.
And then
with 18 challenges, assuming that some more folks will reveal themselves, I’m
wondering if, Your Honor, should we be planning on getting more jurors? I don’t
know what Your Honor’s pleasure is in that regard.
with 18 challenges, assuming that some more folks will reveal themselves, I’m
wondering if, Your Honor, should we be planning on getting more jurors? I don’t
know what Your Honor’s pleasure is in that regard.
. . . .
The
Court: So anyway: So it’s not — I
haven’t tried one of these in a while, but I guess it’s not unexpected that
you’re going to have issues with the selection process. So, you know, we’ll do
as much as we can. I’m not trying to make you speed up, Mr. Hammer, on your
questioning, but my thought also is that I can’t get this courtroom every day.
And, you know, if we come back, and having jurors questioned in my courtroom, I
mean, we’re maxed out at about 46 to 50 jurors, depending how many we put in
there.
Court: So anyway: So it’s not — I
haven’t tried one of these in a while, but I guess it’s not unexpected that
you’re going to have issues with the selection process. So, you know, we’ll do
as much as we can. I’m not trying to make you speed up, Mr. Hammer, on your
questioning, but my thought also is that I can’t get this courtroom every day.
And, you know, if we come back, and having jurors questioned in my courtroom, I
mean, we’re maxed out at about 46 to 50 jurors, depending how many we put in
there.
Plaintiff’s
Counsel: Judge, what I was thinking,
because of that — and I agree with the Court. Under Florida law, there’s quite
a few jurors that indicated they couldn’t be fair. Couldn’t set that aside.
Counsel: Judge, what I was thinking,
because of that — and I agree with the Court. Under Florida law, there’s quite
a few jurors that indicated they couldn’t be fair. Couldn’t set that aside.
I think
out of abundance of caution, you ought to excuse them for cause. Because it
will move things along a lot faster. Because they won’t be answering questions,
won’t be wasting time talking to them. Because we know they’re going to be
excused anyway.
out of abundance of caution, you ought to excuse them for cause. Because it
will move things along a lot faster. Because they won’t be answering questions,
won’t be wasting time talking to them. Because we know they’re going to be
excused anyway.
So I would
request this Court to strike those individuals for cause that we feel have
risen to that level, and I counted roughly about 30 people. And I would be
happy to go through those real quick, and I think it’s fair to strike those.
Then that way I think I can move a lot quicker through the remaining panel.
Because otherwise I’m going to be spending time talking to all them.
request this Court to strike those individuals for cause that we feel have
risen to that level, and I counted roughly about 30 people. And I would be
happy to go through those real quick, and I think it’s fair to strike those.
Then that way I think I can move a lot quicker through the remaining panel.
Because otherwise I’m going to be spending time talking to all them.
The
Court: Why?
Court: Why?
Plaintiff’s
Counsel: Because inevitably they’re going
to answer a question. And I can’t just ignore them. And they’re going to add to
the conversation. And, you know, defense has already raised the point that we
don’t want to poison the panel as a whole. I don’t want to risk that, because
we are close to getting rid of an awful lot of people.
Counsel: Because inevitably they’re going
to answer a question. And I can’t just ignore them. And they’re going to add to
the conversation. And, you know, defense has already raised the point that we
don’t want to poison the panel as a whole. I don’t want to risk that, because
we are close to getting rid of an awful lot of people.
So rather
than take the entire panel —
than take the entire panel —
The
Court: How much more questioning do you
have? I know you only asked one — very few — the questioning so far has been
very, very limited.
Court: How much more questioning do you
have? I know you only asked one — very few — the questioning so far has been
very, very limited.
Plaintiff’s
Counsel: Judge, I’ve gone a little over an
hour. I understand that. And I asked a series of questions. I anticipate having
a couple more hours to go. But, you know, I think if we eliminate some of the
people, it’s going to streamline my voir dire quite a bit.
Counsel: Judge, I’ve gone a little over an
hour. I understand that. And I asked a series of questions. I anticipate having
a couple more hours to go. But, you know, I think if we eliminate some of the
people, it’s going to streamline my voir dire quite a bit.
Defense
Counsel: Your Honor, just one observation.
I don’t think there’s any way we finish voir dire today.
Counsel: Your Honor, just one observation.
I don’t think there’s any way we finish voir dire today.
The
Court: I know there’s not.
Court: I know there’s not.
Defense
Counsel: In fact, I would be surprised if
Mr. Hammer is able to finish in the time we have this afternoon.
Counsel: In fact, I would be surprised if
Mr. Hammer is able to finish in the time we have this afternoon.
The
Court: That’s my point. Let’s say Mr.
Hammer is not — that’s what I’m concerned about — he’s not able to finish
today. It’s not going to come to your end. And I don’t really see why we should
be keeping all these people around.
Court: That’s my point. Let’s say Mr.
Hammer is not — that’s what I’m concerned about — he’s not able to finish
today. It’s not going to come to your end. And I don’t really see why we should
be keeping all these people around.
Defense
Counsel: I agree, Your Honor. Again, our
position is we think that the defendants are entitled to examine the venire as
a whole. They’re part of this. They’re part of this group. Sometimes they might
chime in. It’s very easy to say “Thank you, juror number whatever, we’ve heard
from you. I don’t mean to be rude, but we need to move on.”
Counsel: I agree, Your Honor. Again, our
position is we think that the defendants are entitled to examine the venire as
a whole. They’re part of this. They’re part of this group. Sometimes they might
chime in. It’s very easy to say “Thank you, juror number whatever, we’ve heard
from you. I don’t mean to be rude, but we need to move on.”
So it’s
not that we’re going to try to spend time with them, but we want to keep the
whole group together.
not that we’re going to try to spend time with them, but we want to keep the
whole group together.
The other
thing is, if we come back and this group sees that 30 people are gone, that’s a
pretty good invitation of people to just start saying things to go. We don’t
have a good feel for it.
thing is, if we come back and this group sees that 30 people are gone, that’s a
pretty good invitation of people to just start saying things to go. We don’t
have a good feel for it.
I think
what we really want to do here is get through Mr. Hammer’s stuff. I can go,
whenever he finishes, I will be shorter than him. Mr. Woods, Ms. Ruiz, I think
will be even shorter than I am. Then we will go through and do all the cause
challenges.
what we really want to do here is get through Mr. Hammer’s stuff. I can go,
whenever he finishes, I will be shorter than him. Mr. Woods, Ms. Ruiz, I think
will be even shorter than I am. Then we will go through and do all the cause
challenges.
I think we
have a still good shot if we end up with 25, 30 remaining, and we can pick a
jury. But we should know where we stand with this panel sometime Monday morning
or by lunch on Monday. And if we need to bring in more jurors, we can do so at
that time.
have a still good shot if we end up with 25, 30 remaining, and we can pick a
jury. But we should know where we stand with this panel sometime Monday morning
or by lunch on Monday. And if we need to bring in more jurors, we can do so at
that time.
But I’m
worried — so, one, I think we have the right to examine the panel as a whole.
But, two, if we take 30 people out after one hour of questioning, we can very
well encourage people to mass exodus right out of here and not have anybody
left.
worried — so, one, I think we have the right to examine the panel as a whole.
But, two, if we take 30 people out after one hour of questioning, we can very
well encourage people to mass exodus right out of here and not have anybody
left.
So just
for the record, our position would be that we keep going, we get as much as we
can do this afternoon accomplished, and we can give you a better update on our
timing once Mr. Hammer is done.
for the record, our position would be that we keep going, we get as much as we
can do this afternoon accomplished, and we can give you a better update on our
timing once Mr. Hammer is done.
But for
the record, I don’t intend to spend a significant amount of time with people
where everybody is in agreement that a cause record has been made.
the record, I don’t intend to spend a significant amount of time with people
where everybody is in agreement that a cause record has been made.
The
Court: I guess part of my concern is
you’re suggesting we keep all these people here, and I understand why you’re
concerned about it. And there may be some truth to it, that there’s an
interplay. You can ask jurors questions.
Court: I guess part of my concern is
you’re suggesting we keep all these people here, and I understand why you’re
concerned about it. And there may be some truth to it, that there’s an
interplay. You can ask jurors questions.
But let’s
say we come back on Monday, and I’m bringing all these people in so you can
have that interplay that you want and I can’t get this courtroom. We have my —
my courtroom holds 46 to 50 people. Are you suggesting that you want to leave
the people here and bring them back, we’re going to do this in two sessions
when you question the jurors? Because I can’t get a big courtroom?
say we come back on Monday, and I’m bringing all these people in so you can
have that interplay that you want and I can’t get this courtroom. We have my —
my courtroom holds 46 to 50 people. Are you suggesting that you want to leave
the people here and bring them back, we’re going to do this in two sessions
when you question the jurors? Because I can’t get a big courtroom?
Defense
Counsel: I would have to confer with my
colleagues over the logistics of it. If we have space limitations on Monday, maybe
we could come up with a solution for you. But I think fundamentally if that’s
what we had to do, we might have to make arrangements to examine two panels.
Counsel: I would have to confer with my
colleagues over the logistics of it. If we have space limitations on Monday, maybe
we could come up with a solution for you. But I think fundamentally if that’s
what we had to do, we might have to make arrangements to examine two panels.
But again,
I have not had an opportunity to talk with my colleagues about how we would
approach the situation.
I have not had an opportunity to talk with my colleagues about how we would
approach the situation.
The
Court: Why don’t you go ahead and talk to
them now. We will be in recess.
Court: Why don’t you go ahead and talk to
them now. We will be in recess.
Defense
Counsel: Thank you, Your Honor, for the
opportunity to let us confer back there in the side room. Our thought would be
we get the jurors back in here, start the afternoon session.
Counsel: Thank you, Your Honor, for the
opportunity to let us confer back there in the side room. Our thought would be
we get the jurors back in here, start the afternoon session.
Let’s see
what Mr. Hammer accomplishes. If he finishes up, we can have a talk this
afternoon about whether there is an opportunity to get some jurors out of here
before Monday and if we need to make arrangements to be in a smaller courtroom
on Monday.
what Mr. Hammer accomplishes. If he finishes up, we can have a talk this
afternoon about whether there is an opportunity to get some jurors out of here
before Monday and if we need to make arrangements to be in a smaller courtroom
on Monday.
But our
thought would be at a minimum, it would be much less conspicuous if we let
people go, to do so at the end of the day. I’m not sure we’re all on the same
page with respect to the 30 or so people Mr. Hammer mentioned. We may need to
argue some of those.
thought would be at a minimum, it would be much less conspicuous if we let
people go, to do so at the end of the day. I’m not sure we’re all on the same
page with respect to the 30 or so people Mr. Hammer mentioned. We may need to
argue some of those.
Our
thought would be to bring the whole panel back in now, let Mr. Hammer keep
going, and we confer again on this at 5:00, at the end of the day today.
thought would be to bring the whole panel back in now, let Mr. Hammer keep
going, and we confer again on this at 5:00, at the end of the day today.
The
Court: Anything else . . . ?
Court: Anything else . . . ?
Plaintiff’s
Counsel: Judge, our preference would be to
go through and excuse those people that clearly meet the cause criteria.
Counsel: Judge, our preference would be to
go through and excuse those people that clearly meet the cause criteria.
The
Court: Thank you. And Counsel,
respectfully, that would be my suggestion as well. Let’s just go through this
docket and get rid of these jurors who — basically indicated to your question,
Mr. Hammer, that they had a strong feeling and that it’s not something they
could set aside.
Court: Thank you. And Counsel,
respectfully, that would be my suggestion as well. Let’s just go through this
docket and get rid of these jurors who — basically indicated to your question,
Mr. Hammer, that they had a strong feeling and that it’s not something they
could set aside.
I have my
own notes. I’m sure that I might have missed one or two, but I have my own
notes.
own notes. I’m sure that I might have missed one or two, but I have my own
notes.
Plaintiff’s counsel began by listing
his objected-to venire members. As plaintiff’s counsel listed the jurors,
defense counsel objected that he should be able to question them first. The
trial court excused thirty-one jurors without providing the defense an
opportunity to question them. The defense accepted the jury with the exception
of its continued objection to the process employed to excuse thirty-one jurors
without providing the defense an opportunity to question them.
his objected-to venire members. As plaintiff’s counsel listed the jurors,
defense counsel objected that he should be able to question them first. The
trial court excused thirty-one jurors without providing the defense an
opportunity to question them. The defense accepted the jury with the exception
of its continued objection to the process employed to excuse thirty-one jurors
without providing the defense an opportunity to question them.
The trial proceeded. The tobacco
defendants argued the trial court was required to instruct the jury that
punitive damages are only available for intentional torts — not negligence and
strict liability claims. The court agreed. The trial court followed defense
counsel’s recommendation and did not include a question concerning whether punitive
damages were warranted if the jury found no reliance.
defendants argued the trial court was required to instruct the jury that
punitive damages are only available for intentional torts — not negligence and
strict liability claims. The court agreed. The trial court followed defense
counsel’s recommendation and did not include a question concerning whether punitive
damages were warranted if the jury found no reliance.
The jury returned a verdict in favor
of the plaintiff. It found the plaintiff did not prove the decedent relied on a
statement or omission after May 5, 1982, but that he relied on a statement before
that date. The jury apportioned the responsibility for the decedent’s death as
follows: 14.5% to R.J. Reynolds, 14.5% to Lorillard, 1% to Liggett Group, and
70% to the decedent.
of the plaintiff. It found the plaintiff did not prove the decedent relied on a
statement or omission after May 5, 1982, but that he relied on a statement before
that date. The jury apportioned the responsibility for the decedent’s death as
follows: 14.5% to R.J. Reynolds, 14.5% to Lorillard, 1% to Liggett Group, and
70% to the decedent.
The tobacco defendants filed several
post-trial motions, including a motion for new trial. They argued the court
should grant a new trial because it had “erroneously dismissed jurors for cause
in each panel immediately after plaintiff’s counsel’s questioning, thus (i)
depriving [d]efendants of the opportunity to orally question the entire venire;
and (ii) tainting the remaining jurors’ answers to the [d]efendants’ voir
dire questioning.”
post-trial motions, including a motion for new trial. They argued the court
should grant a new trial because it had “erroneously dismissed jurors for cause
in each panel immediately after plaintiff’s counsel’s questioning, thus (i)
depriving [d]efendants of the opportunity to orally question the entire venire;
and (ii) tainting the remaining jurors’ answers to the [d]efendants’ voir
dire questioning.”
The plaintiff also moved for a new
trial to allow the jury to decide the issue of entitlement to punitive damages.
The trial court granted the defendants’ motion for new trial based on its
dismissal of thirty-one members of the venire without allowing the defense to
question them. The court denied all other motions from both parties. From the
order granting the new trial, the plaintiff now appeals. The tobacco defendants
cross-appeal to preserve issues concerning the use of the Engle1 findings.
trial to allow the jury to decide the issue of entitlement to punitive damages.
The trial court granted the defendants’ motion for new trial based on its
dismissal of thirty-one members of the venire without allowing the defense to
question them. The court denied all other motions from both parties. From the
order granting the new trial, the plaintiff now appeals. The tobacco defendants
cross-appeal to preserve issues concerning the use of the Engle1 findings.
The plaintiff argues the trial court
erred by ordering a new trial on all issues when the court had not erred in
dismissing the thirty-one venire members for cause. She claims no party has an
absolute right to examine prospective jurors once the trial court has concluded
the jurors cannot be impartial or rehabilitated.
erred by ordering a new trial on all issues when the court had not erred in
dismissing the thirty-one venire members for cause. She claims no party has an
absolute right to examine prospective jurors once the trial court has concluded
the jurors cannot be impartial or rehabilitated.
The defendants respond that Florida
case law holds that a trial court reversibly errs when it dismisses jurors for
cause without allowing the attorneys to conduct voir dire. They argue the trial
court erred in dismissing thirty-one jurors for bias without allowing defense
counsel to examine them.
case law holds that a trial court reversibly errs when it dismisses jurors for
cause without allowing the attorneys to conduct voir dire. They argue the trial
court erred in dismissing thirty-one jurors for bias without allowing defense
counsel to examine them.
We review the trial court’s order
granting a new trial for an abuse of discretion. Reffaie v. Wal-Mart Stores,
Inc., 96 So. 3d 1073, 1075 (Fla. 4th DCA 2012). We have emphasized that our
review is even more limited where the trial court grants a motion for new
trial. Thigpen v. United Parcel Servs., Inc., 990 So. 2d 639, 645 (Fla.
4th DCA 2008) (emphasis added) (internal citation and quotation omitted) (“A
trial court’s discretion to grant a new trial is of such firmness that
it would not be disturbed except on a clear showing of abuse.”). For who is in
a better position to review an error than the one who makes it?
granting a new trial for an abuse of discretion. Reffaie v. Wal-Mart Stores,
Inc., 96 So. 3d 1073, 1075 (Fla. 4th DCA 2012). We have emphasized that our
review is even more limited where the trial court grants a motion for new
trial. Thigpen v. United Parcel Servs., Inc., 990 So. 2d 639, 645 (Fla.
4th DCA 2008) (emphasis added) (internal citation and quotation omitted) (“A
trial court’s discretion to grant a new trial is of such firmness that
it would not be disturbed except on a clear showing of abuse.”). For who is in
a better position to review an error than the one who makes it?
A trial court should grant a new
trial where an examination of the entire case indicates that the error resulted
in a miscarriage of justice. § 59.041, Fla. Stat. (2015). When a trial court is
deciding whether to excuse a juror for bias, “[t]he test is whether the juror
possesses the state of mind necessary to render a verdict in accordance with
the evidence and not based upon preconceived opinions.” Matarranz v. State,
133 So. 3d 473, 489 (Fla. 2013). While the court may ask questions of the panel
members, “the right of the parties to conduct a reasonable examination of each
juror orally must be preserved.” Fla. R. Civ. P. 1.431(b). That right requires
counsel for each side to orally examine the panel members during voir dire. Jenkins
v. State, 824 So. 2d 977, 981 (Fla. 4th DCA 2002).
trial where an examination of the entire case indicates that the error resulted
in a miscarriage of justice. § 59.041, Fla. Stat. (2015). When a trial court is
deciding whether to excuse a juror for bias, “[t]he test is whether the juror
possesses the state of mind necessary to render a verdict in accordance with
the evidence and not based upon preconceived opinions.” Matarranz v. State,
133 So. 3d 473, 489 (Fla. 2013). While the court may ask questions of the panel
members, “the right of the parties to conduct a reasonable examination of each
juror orally must be preserved.” Fla. R. Civ. P. 1.431(b). That right requires
counsel for each side to orally examine the panel members during voir dire. Jenkins
v. State, 824 So. 2d 977, 981 (Fla. 4th DCA 2002).
“A trial court must excuse a juror
where there is reasonable doubt whether the juror is impartial. To determine
whether such reasonable doubt exists, the trial court should consider the
context and entirety of the juror’s responses.” Jackson v. State, 213
So. 3d 754, 770 (Fla. 2017) (internal citations omitted).
where there is reasonable doubt whether the juror is impartial. To determine
whether such reasonable doubt exists, the trial court should consider the
context and entirety of the juror’s responses.” Jackson v. State, 213
So. 3d 754, 770 (Fla. 2017) (internal citations omitted).
In its order granting new trial, the
trial court cited O’Connell v. State, 480 So. 2d 1284 (Fla. 1985).
There, the supreme court held the trial court erred in excluding prospective
jurors when it first allowed the prosecutor — but not defense counsel — to
question them. Id. at 1286-87. This amounted to a due process violation,
and warranted a new trial. Id. at 1287; see also Green v. State,
575 So. 2d 796, 797 (Fla. 4th DCA 1991) (applying O’Connell and holding
the trial court erred in striking two venire members, who doubted their ability
to be impartial, without first giving the defendant an opportunity to question
them).
trial court cited O’Connell v. State, 480 So. 2d 1284 (Fla. 1985).
There, the supreme court held the trial court erred in excluding prospective
jurors when it first allowed the prosecutor — but not defense counsel — to
question them. Id. at 1286-87. This amounted to a due process violation,
and warranted a new trial. Id. at 1287; see also Green v. State,
575 So. 2d 796, 797 (Fla. 4th DCA 1991) (applying O’Connell and holding
the trial court erred in striking two venire members, who doubted their ability
to be impartial, without first giving the defendant an opportunity to question
them).
The trial court also cited two of
our opinions in its order. See Melendez v. State, 700 So. 2d 791 (Fla.
4th DCA 1997); Sisto v. Aetna Cas. & Sur. Co., 689 So. 2d 438 (Fla.
4th DCA 1997). Melendez is instructive.
our opinions in its order. See Melendez v. State, 700 So. 2d 791 (Fla.
4th DCA 1997); Sisto v. Aetna Cas. & Sur. Co., 689 So. 2d 438 (Fla.
4th DCA 1997). Melendez is instructive.
There, we held that trial courts
have considerable discretion in determining the extent of venire examination.
have considerable discretion in determining the extent of venire examination.
[But, t]he
court’s failure to allow counsel to inquire into a prospective juror’s
potential biases amounts to an abuse of discretion warranting reversal unless
it becomes “conclusively clear to the court after questioning, that there was
no reasonable basis to anticipate that the juror could return a verdict against
the defendant.”
court’s failure to allow counsel to inquire into a prospective juror’s
potential biases amounts to an abuse of discretion warranting reversal unless
it becomes “conclusively clear to the court after questioning, that there was
no reasonable basis to anticipate that the juror could return a verdict against
the defendant.”
Melendez, 700 So. 2d at 792 (quoting Fleckinger v. State, 642
So. 2d 35, 37 (Fla. 4th DCA 1994)).
So. 2d 35, 37 (Fla. 4th DCA 1994)).
Here, at the outset of the
discussion, the trial judge stated: “I don’t see how you can rehabilitate those
jurors. It would be my thought just to excuse them.” While defense counsel
agreed “there were certainly some people . . . who articulated views that
cannot be rehabilitated,” it did not acquiesce in the court’s procedure and
requested an opportunity to question the venire as a whole. And, the court did
not find that it was “conclusively clear” the thirty-one potential jurors could
not be impartial.
discussion, the trial judge stated: “I don’t see how you can rehabilitate those
jurors. It would be my thought just to excuse them.” While defense counsel
agreed “there were certainly some people . . . who articulated views that
cannot be rehabilitated,” it did not acquiesce in the court’s procedure and
requested an opportunity to question the venire as a whole. And, the court did
not find that it was “conclusively clear” the thirty-one potential jurors could
not be impartial.
The trial court had the unique
perspective to reflect upon its own decision to eliminate thirty-one people
from the venire without allowing the defense to ask a single question. We
provide great deference to trial courts in making such decisions. We agree with
the trial court in correcting its initial error and granting a new trial.
perspective to reflect upon its own decision to eliminate thirty-one people
from the venire without allowing the defense to ask a single question. We
provide great deference to trial courts in making such decisions. We agree with
the trial court in correcting its initial error and granting a new trial.
With that said, we disagree with the
tobacco defendants to the extent that their right to question the venire
encompassed the use of that process to taint the entire venire. The better
procedure would have been to allow the defense to question the thirty-one
venire members outside the presence of the entire venire once it became
apparent that some or all of them might possess a bias that could not be
undone. In this way, the court could ensure that biased members were excused
without tainting the entire venire with the bias of those members.
tobacco defendants to the extent that their right to question the venire
encompassed the use of that process to taint the entire venire. The better
procedure would have been to allow the defense to question the thirty-one
venire members outside the presence of the entire venire once it became
apparent that some or all of them might possess a bias that could not be
undone. In this way, the court could ensure that biased members were excused
without tainting the entire venire with the bias of those members.
Because a new trial has been
granted, we need not address the punitive damage issues raised. Subsequent case
law has provided much needed guidance on these issues. See, e.g.,
Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016). And
lastly, we affirm the cross-appeal without further comment.
granted, we need not address the punitive damage issues raised. Subsequent case
law has provided much needed guidance on these issues. See, e.g.,
Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016). And
lastly, we affirm the cross-appeal without further comment.
For the reasons expressed, we affirm
the order granting a new trial.
the order granting a new trial.
Affirmed. (GROSS J., concurs.)
__________________
1Engle v.
Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).
__________________
(CONNER, J., concurring in part and
dissenting in part.) I concur with the majority to affirm the cross-appeal.
However, I respectfully dissent from the affirmance of the trial court’s order
granting a new trial. My review of the record leads me to conclude the trial
court did not err in dismissing the potential jurors without affording the
defendants the opportunity to ask questions, and the grant of a new trial on a
legal issue, rather than a factual issue, was error.
dissenting in part.) I concur with the majority to affirm the cross-appeal.
However, I respectfully dissent from the affirmance of the trial court’s order
granting a new trial. My review of the record leads me to conclude the trial
court did not err in dismissing the potential jurors without affording the
defendants the opportunity to ask questions, and the grant of a new trial on a
legal issue, rather than a factual issue, was error.
The majority correctly points out
that a new trial should be granted to cure a miscarriage of justice and our
review of a grant of a new trial is more limited than a denial, requiring a
clear showing of abuse. However, we have also said:
that a new trial should be granted to cure a miscarriage of justice and our
review of a grant of a new trial is more limited than a denial, requiring a
clear showing of abuse. However, we have also said:
While
ordinarily the granting of a new trial is within the sound discretion of the
trial judge, reversible only on showing of an abuse of discretion, if the
ruling is grounded on a question of law, uncontaminated with factual conflict,
the area of discretion in granting a new trial is drastically limited,[
]and the appellate court is on the same footing as the trial judge in
determining the correct law to be applied.
ordinarily the granting of a new trial is within the sound discretion of the
trial judge, reversible only on showing of an abuse of discretion, if the
ruling is grounded on a question of law, uncontaminated with factual conflict,
the area of discretion in granting a new trial is drastically limited,[
]and the appellate court is on the same footing as the trial judge in
determining the correct law to be applied.
State Farm Mut. Auto. Ins. Co. v.
Gage, 611 So. 2d 39, 40 (Fla. 4th DCA
1992) (emphasis added, footnote omitted and citations omitted). Acknowledging a
stronger showing is required to reverse a grant of new trial, the Second
District has said that “the point being one strictly of law uncontaminated with
factual conflict, the area of discretion is drastically diminished if not
entirely eliminated.” Florida Power Corp. v. Smith, 202 So. 2d 872,
875 (Fla. 2d DCA 1967)) (emphasis added) (quoting Brown v. Fawcett Publ’ns,
Inc., 196 So. 2d 465, 466 (Fla. 2d DCA 1967)). In Florida Power, the
Second District reviewed the grant of a new trial on the contention that a
juror gave misleading information during jury selection. Id. Additionally,
the court wrote:
Gage, 611 So. 2d 39, 40 (Fla. 4th DCA
1992) (emphasis added, footnote omitted and citations omitted). Acknowledging a
stronger showing is required to reverse a grant of new trial, the Second
District has said that “the point being one strictly of law uncontaminated with
factual conflict, the area of discretion is drastically diminished if not
entirely eliminated.” Florida Power Corp. v. Smith, 202 So. 2d 872,
875 (Fla. 2d DCA 1967)) (emphasis added) (quoting Brown v. Fawcett Publ’ns,
Inc., 196 So. 2d 465, 466 (Fla. 2d DCA 1967)). In Florida Power, the
Second District reviewed the grant of a new trial on the contention that a
juror gave misleading information during jury selection. Id. Additionally,
the court wrote:
The rule
is that there must be a reason in law for a trial Judge’s setting aside a
verdict and granting a new trial, otherwise the Judge invades the province of
the jury.
is that there must be a reason in law for a trial Judge’s setting aside a
verdict and granting a new trial, otherwise the Judge invades the province of
the jury.
. . . .
It is
concededly true that a trial Court has broad judicial discretion in the matter
of setting aside a verdict and granting a new trial but it must be predicated
upon the proposition that error is shown to have been committed during the
trial or some injustice done to the moving party.
concededly true that a trial Court has broad judicial discretion in the matter
of setting aside a verdict and granting a new trial but it must be predicated
upon the proposition that error is shown to have been committed during the
trial or some injustice done to the moving party.
. . . .
A
new trial should be granted only when substantial rights have been so violated
as to make it reasonably clear that a fair trial was not had.
new trial should be granted only when substantial rights have been so violated
as to make it reasonably clear that a fair trial was not had.
Id. at 878 (emphasis added and citations omitted).
The majority quotes a significant
portion of the trial transcript regarding a bench conference discussion of the
responses of multiple prospective jurors to the group question posed by
plaintiff’s counsel. But the details of what happened prior to and after that
discussion and the trial judge’s decision to excuse biased potential jurors
before giving the defense an opportunity to ask questions are important to the
analysis.
portion of the trial transcript regarding a bench conference discussion of the
responses of multiple prospective jurors to the group question posed by
plaintiff’s counsel. But the details of what happened prior to and after that
discussion and the trial judge’s decision to excuse biased potential jurors
before giving the defense an opportunity to ask questions are important to the
analysis.
Before the portion of the transcript quoted above, as to each
potential juror excused, plaintiff’s counsel asked the same series of three
questions along the following lines:
potential juror excused, plaintiff’s counsel asked the same series of three
questions along the following lines:
Is your belief
a strongly held belief?
a strongly held belief?
Is your
belief something you could set aside?
belief something you could set aside?
Are your
feelings so strong that you have a reasonable doubt as to whether or not you
could set aside those feelings in a case like this?
feelings so strong that you have a reasonable doubt as to whether or not you
could set aside those feelings in a case like this?
As to the first and third questions,
each excused potential juror answered affirmatively, and each answered
negatively to the second question.
each excused potential juror answered affirmatively, and each answered
negatively to the second question.
After the portion of the transcript quoted above, the trial judge
had the plaintiff discuss one-by-one the potential jurors who responded as such
to the three questions posed above. With the first potential juror discussed,
the trial court acknowledged that the defense was objecting to the procedure,
but wanted to know if there were any further objections. As each prospective
juror was discussed, defense counsel gave one of three responses: “no
objection,” “same position,” or “same objection.” After hearing “same
objection” a few times, the judge sought clarification:
had the plaintiff discuss one-by-one the potential jurors who responded as such
to the three questions posed above. With the first potential juror discussed,
the trial court acknowledged that the defense was objecting to the procedure,
but wanted to know if there were any further objections. As each prospective
juror was discussed, defense counsel gave one of three responses: “no
objection,” “same position,” or “same objection.” After hearing “same
objection” a few times, the judge sought clarification:
The
Court: When you say “same objection,” so
the record is clear, I know you are objecting to the procedure, but you’re not
indicating that these jurors — you think these jurors can be rehabilitated or
anything like that?
Court: When you say “same objection,” so
the record is clear, I know you are objecting to the procedure, but you’re not
indicating that these jurors — you think these jurors can be rehabilitated or
anything like that?
Defense
Counsel: Correct.
Counsel: Correct.
The
Court: Thank you.
Court: Thank you.
In other words, defense counsel
agreed with plaintiff’s counsel assertion that each potential juror excused
gave responses indicating bias which could not be rehabilitated. The defendants
admitted the same at oral argument.
agreed with plaintiff’s counsel assertion that each potential juror excused
gave responses indicating bias which could not be rehabilitated. The defendants
admitted the same at oral argument.
Reviewing the discussion quoted by
the majority, defense counsel said the following as the basis for objecting to
the procedure:
the majority, defense counsel said the following as the basis for objecting to
the procedure:
Again, our
position is we think that the defendants are entitled to examine the venire as
a whole. They’re part of this. They’re part of this group.
position is we think that the defendants are entitled to examine the venire as
a whole. They’re part of this. They’re part of this group.
[W]e want
to keep the whole group together.
to keep the whole group together.
Additionally, defense counsel
expressed concern regarding releasing so many prospective jurors early on in
the selection process: “if we come back and this group sees that 30 people are
gone, that’s a pretty good invitation of people to just start saying things to
go. We don’t have a good feel for it.”
expressed concern regarding releasing so many prospective jurors early on in
the selection process: “if we come back and this group sees that 30 people are
gone, that’s a pretty good invitation of people to just start saying things to
go. We don’t have a good feel for it.”
The majority correctly notes that a
new trial should be granted to correct a miscarriage of justice. By rule, “the
right of the parties to conduct a reasonable examination of each juror orally
must be preserved.” Fla. R. Civ. P. 1.431(b). The majority is correct that the
right preserved by the rule requires counsel for each side to orally examine
the panel members during voir dire. Jenkins v. State, 824 So. 2d
977, 981 (Fla. 4th DCA 2002). However, our supreme court has recently
reaffirmed that “[a] trial court must excuse a juror where there is
reasonable doubt whether the juror is impartial.” Jackson v. State, 213
So. 3d 754, 770 (Fla. 2017) (emphasis added) (citing Banks v. State, 46
So. 3d 989, 995 (Fla. 2010)). The majority interprets “must excuse” to mean
only after both sides have an opportunity to ask questions. But our jury
system is so loathe to allow bias and prejudice to seep into the process, that
it appears to me that there is no error in dismissing a biased potential juror,
once both sides agree the bias exists and cannot be rehabilitated,
regardless of whether opposing counsel has an opportunity to question further.
new trial should be granted to correct a miscarriage of justice. By rule, “the
right of the parties to conduct a reasonable examination of each juror orally
must be preserved.” Fla. R. Civ. P. 1.431(b). The majority is correct that the
right preserved by the rule requires counsel for each side to orally examine
the panel members during voir dire. Jenkins v. State, 824 So. 2d
977, 981 (Fla. 4th DCA 2002). However, our supreme court has recently
reaffirmed that “[a] trial court must excuse a juror where there is
reasonable doubt whether the juror is impartial.” Jackson v. State, 213
So. 3d 754, 770 (Fla. 2017) (emphasis added) (citing Banks v. State, 46
So. 3d 989, 995 (Fla. 2010)). The majority interprets “must excuse” to mean
only after both sides have an opportunity to ask questions. But our jury
system is so loathe to allow bias and prejudice to seep into the process, that
it appears to me that there is no error in dismissing a biased potential juror,
once both sides agree the bias exists and cannot be rehabilitated,
regardless of whether opposing counsel has an opportunity to question further.
The majority’s reliance on Melendez
v. State, 700 So. 2d 791 (Fla. 4th DCA 1997), is puzzling in that it uses a
quote from the opinion, which in turn quotes our earlier opinion in Fleckinger
v. State, 642 So. 2d 35 (Fla. 4th DCA 1994). Fleckinger is actually
more controlling for the disposition of this case. In Fleckinger, the
trial court excused a prospective juror after questioning by the court but
without allowing defense counsel to examine the juror. Id. at 36. The
prospective juror stated under questioning by the court that she could not
serve because of her religious beliefs. Id. After several questions by
the court to see if she would budge from her position, the State moved to
excuse her, which the court granted. Id. The defense moved for mistrial,
objecting to the procedure. Id. After observing that the record made it
“absolutely and unambiguously clear that [the prospective juror] was incapable
of reaching a verdict for the state,” we concluded that “[o]nce it became
conclusively clear to the court after questioning, that there was no reasonable
basis to anticipate that the juror could return a verdict against the
defendant, it was not an abuse of discretion to excuse her.” Id. at
36-37. It appears a parallel situation occurred in this case.
v. State, 700 So. 2d 791 (Fla. 4th DCA 1997), is puzzling in that it uses a
quote from the opinion, which in turn quotes our earlier opinion in Fleckinger
v. State, 642 So. 2d 35 (Fla. 4th DCA 1994). Fleckinger is actually
more controlling for the disposition of this case. In Fleckinger, the
trial court excused a prospective juror after questioning by the court but
without allowing defense counsel to examine the juror. Id. at 36. The
prospective juror stated under questioning by the court that she could not
serve because of her religious beliefs. Id. After several questions by
the court to see if she would budge from her position, the State moved to
excuse her, which the court granted. Id. The defense moved for mistrial,
objecting to the procedure. Id. After observing that the record made it
“absolutely and unambiguously clear that [the prospective juror] was incapable
of reaching a verdict for the state,” we concluded that “[o]nce it became
conclusively clear to the court after questioning, that there was no reasonable
basis to anticipate that the juror could return a verdict against the
defendant, it was not an abuse of discretion to excuse her.” Id. at
36-37. It appears a parallel situation occurred in this case.
On appeal, as they did below, the
defendants argue that they were deprived of the ability to use “group dynamics”
to assist in being able to intelligently use peremptory and cause challenges.
However, the defendants, in my view, have not sufficiently explained how
keeping the excused jurors until they were able to ask questions would have facilitated
some group dynamic that would have made questioning more effective in
determining which of the remaining jurors should be excused for cause or
peremptorily. The trial judge was correctly concerned that keeping biased
jurors on the venire ran the risk that one of those jurors could have said
something so biased as to be grounds to dismiss the entire venire.
defendants argue that they were deprived of the ability to use “group dynamics”
to assist in being able to intelligently use peremptory and cause challenges.
However, the defendants, in my view, have not sufficiently explained how
keeping the excused jurors until they were able to ask questions would have facilitated
some group dynamic that would have made questioning more effective in
determining which of the remaining jurors should be excused for cause or
peremptorily. The trial judge was correctly concerned that keeping biased
jurors on the venire ran the risk that one of those jurors could have said
something so biased as to be grounds to dismiss the entire venire.
Other than some nebulous and
speculative theory that they were deprived of the opportunity to work off
“group dynamics,” the defendants have failed to show what harm was suffered.
The concern that releasing so many potential jurors early on would invite the
remaining potential jurors “to just start saying things to go” did not pan out
and was offset by negating the risk that biased potential jurors could pollute
the entire venire. It is clear the trial judge would have allowed further
questioning if the defendants thought any excused juror could have been
rehabilitated. If further questioning would have been requested to determine if
rehabilitation was possible, I agree with the majority that individual
questioning would have been the better course. However, the record simply does
not support the conclusion that the defendants were deprived of a fair trial or
that a miscarriage of justice occurred.
speculative theory that they were deprived of the opportunity to work off
“group dynamics,” the defendants have failed to show what harm was suffered.
The concern that releasing so many potential jurors early on would invite the
remaining potential jurors “to just start saying things to go” did not pan out
and was offset by negating the risk that biased potential jurors could pollute
the entire venire. It is clear the trial judge would have allowed further
questioning if the defendants thought any excused juror could have been
rehabilitated. If further questioning would have been requested to determine if
rehabilitation was possible, I agree with the majority that individual
questioning would have been the better course. However, the record simply does
not support the conclusion that the defendants were deprived of a fair trial or
that a miscarriage of justice occurred.
Although I am satisfied that the
trial judge had second thoughts about the procedure he employed, in my view he
did nothing wrong, given the agreement by the defendants that the excused
jurors were biased and could not be rehabilitated. Having done nothing wrong
during the trial, it was an invasion of the province of the jury sworn to try
the case, to then take their verdict away after trial.
trial judge had second thoughts about the procedure he employed, in my view he
did nothing wrong, given the agreement by the defendants that the excused
jurors were biased and could not be rehabilitated. Having done nothing wrong
during the trial, it was an invasion of the province of the jury sworn to try
the case, to then take their verdict away after trial.
* * *