GAILE MIKU, APPELLANT,
v.
PHILLIP W. OLMEN AND RICHARD T. OLMEN, JOINTLY AND SEVERALLY, APPELLEES
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The Fourth District Court of Appeal reversed a judgment in a negligence suit, finding that the defendant's attorney improperly invoked the 'Golden Rule' argument during closing statements by asking jurors to imagine themselves as the defendant and judge the case as they would want to be judged. The court held that such arguments, whether directed at plaintiff or defendant, improperly invite jurors to abandon their neutrality by considering their own interests rather than the evidence.
The court held that the defendant's statements constituted an improper 'Golden Rule' argument, as such arguments are barred regardless of whether they invite jurors to imagine themselves as plaintiff or defendant. The court determined that the plaintiff made a timely objection, and the trial court should have taken curative action such as instructing the jury to disregard the remarks, even without a motion to do so.
“Now, I ask you, if you had been the unfortunate person who had slid into the rear end of that car, how would you want to be judged? All I ask you to do is bring back your verdict as you would want some jury to bring back a verdict for you.”
The improper 'Golden Rule' argument made by defense counsel during closing argument that invited jurors to imagine themselves as defendants.
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Join FLexlaw to unlock all legal intelligenceThis was a 'rear-ender' negligence suit in which a jury returned a verdict for the defendants. During closing argument, defendant's counsel stated: 'N…
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The unsuccessful plaintiff appeals from a final judgment rendered upon a jury ver-*18diet for defendant in a “rear-ender” negligence suit. We have examined all six points on appeal but find that only the first point has merit.
In the last moments of his closing argument, defendant’s attorney stated to the jury:
“Now, I ask you, if you had been the unfortunate person who had slid into the rear end of that car, how would you want to be judged? All I ask you to do is bring back your verdict as you would want some jury to bring back a verdict for you.”
Several sentences later defense counsel concluded and plaintiff’s counsel immediately moved for a mistrial out of the presence of the jury. The motion was denied as was a subsequent motion for new trial.
The obvious problem here is whether these statements of the defense constituted an improper “Golden Rule” argument. When the matter was presented to the trial judge, the offending attorney remarked that the rule only applies to the plaintiff’s case. We believe, however, that defendants should do unto plaintiffs as defendants would have plaintiffs do unto the defense. Matthew, Chap. 7, Verse 12. For those who prefer decisional authority, see Fisher v. Williams, 327 S.W.2d 256 (Mo.1959); Stewart v. Boring, 312 S.W.2d 131 (Mo.1958) ; and Kahn v. Green, 234 S.W.2d 131 (Tex.Civ.App.1950).
In two cases the First District Court of Appeals has determined that the “Golden Rule” argument is improper. Bullock v. Branch, 130 So.2d 74 (Fla.App.1961); Magid v. Mozo, 135 So.2d 772 (Fla.App.1961). We will not attempt to gild the lustre of Judge Donald K. Carroll’s opinion but will accept and adopt it as the view of this court.
Accordingly, two questions only remain : whether this was a “Golden Rule” argument and whether the plaintiff made sufficient and timely objection.
The defense here argues that the First District cases were based upon blatant and flagrant attempts to inflame the jury and to disturb them from their position of neutrality, whereas here counsel merely urged the jurors to base their deliberation upon the evidence and the law as they would want any jury in their community to do. Such a construction of the statements, while not wholly implausible, appears more as an afterthought than as an intended inference. If trial counsel had meant to convey such a thought, it could have been stated as clearly as appellate counsel has done in his brief.
In any event, the jury could reasonably have believed that reference was being made to their own financial responsibility as if they were defendants in such a case and this would be as prejudicial as reference to their pain and suffering should they be plaintiffs. The latter argument was held in Bullock to be so palpably inflammatory that, upon timely objection being made, the trial court should instruct the jury to disregard the remarks even in the absence of a motion to do so.
On the second point, while plaintiff’s motion for a mistrial was not instantaneous, it did follow promptly. Plaintiff’s counsel explained that he did not want to interrupt since he knew defense counsel was on the home stretch. The court apparently understood this as it remarked that it thought counsel was going to “come out of that chair.” Again, Bullock requires action regardless of objection and no action was taken here even after the motion for mistrial was denied.
It may well be, as appellee argues, that this was a prime case for the defense and the not guilty verdict would have resulted notwithstanding the improper argument. Nevertheless, trial counsel “blew the bit” at the last minute and only a new trial will provide the answer.
Reversed.
ANDREWS, Acting C. J., and WALDEN, J., concur.
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Cited By (13 total)
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LeRETILLEY v. Harris, 354 So. 2d 1213 (Fla. 4th DCA 1978)…nally identify themselves with the injuries. As such, they collectively constitute improper, so called, “golden rule” arguments. Klein v. Herring, 347 So. 2d 681 (Fla. 3d DCA 1977); Stewart v. Cook, 218 So. 2d 491 (Fla. 4th DCA 1969); Miku v. Olmen, 193 So. 2d 17 (Fla. 4th DCA 1966); Bullock v. Branch, 130 So. 2d 74 (Fla. 1st DCA 1961). The difficulty in the case now before us, is whether these given arguments are reversible in the light of the inadequacy of the objection or outright absence of the same. Co…
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Schreidell v. Rabbi Bernard P. Shoter, 500 So. 2d 228 (Fla. 3d DCA 1986)…to the jury. An argument that jurors place themselves in the plaintiffs shoes, commonly referred to as a “golden rule” argument, is impermissible and constitutes reversible error. Klein v. Herring, 347 So. 2d 681 (Fla. 3d DCA 1977); Miku v. Olmen, 193 So. 2d 17 (Fla. 4th DCA 1966); Bullock v. Branch, 130 So. 2d 74 (Fla. 1st DCA 1961). Such an argument is improper because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evi…
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DeFREITAS v. State, 701 So. 2d 593 (Fla. 4th DCA 1997)…ry to make our system of jurisprudence work. However, as far as golden rule arguments are concerned, the lines are clear and bright, simply put they are improper. In short, they enjoy no safe harbor in the trial of a criminal case. In Miku v. Olmen, 193 So. 2d 17 (Fla. 4th DCA 1966), we said that golden rule arguments were per se prejudicial and required a new trial. Only recently have we receded from this principle. See Cleveland Clinic Florida v. Wilson, 685 So. 2d 15 (Fla. 4th DCA 1996). In the instant c…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Goldberg v. Weinkle, 130 So. 2d 74 (Fla. 3d DCA 1961)
- Magid v. Mozo, 135 So. 2d 772 (Fla. 1st DCA 1961)