Court of Appeal considers role of bad character evidence in ordering new trial

This article was created in partnership with McLeish Orlando LLP

A recent Court of Appeal decision overturning a jury verdict and ordering a new trial is a win for plaintiff’s counsel and will be instructive for all counsel going forward, says McLeish Orlando’s Nick Todorovic.

“It’s a very good decision,” says Todorovic, partner at the firm and counsel for the appellant. “Counsel should be wary about attempting to use bad character evidence against plaintiffs when trying to paint them in such a light that, because they are a ‘bad character,’ they are not worthy of compensation for their injuries.”

The trial

Jarvis v. Oliveira involved a 16-year-old girl who was out with her friend one night. They were drunk. They called a taxi to take them home and decided to jump out of the taxi at an intersection to avoid paying the $13.00 taxi fare. As they ran across the street, the plaintiff was struck by a car and suffered catastrophic injuries including a severe traumatic brain injury.

Before the trial, the parties agreed on damages and the trial proceeded solely on the issue of liability and whether the plaintiff was contributorily negligent. The plaintiff already conceded that she was partially responsible for her injuries, but it was up to the jury to determine to what degree.

On a pre-trial motion, plaintiff’s counsel argued that the defense should not be allowed to put to the jury that the plaintiff was running because she was fleeing a taxi fare because it effectively amounted to bad character evidence.

“We addressed it right out of the gate,” Todorovic, who delves into the case and subsequent decisions in a recent blog post, says. “Essentially, you are trying to besmirch the character of someone, and do it in such a way that a jury may think that they are the authors of their own misfortune and not entitled to compensation.”

This became one of the main issues at trial. The trial judge ruled on two previous pre-trial motions that plaintiff’s counsel brought but had yet to decide on the motion on bad character evidence. During plaintiff’s counsel opening submissions, the taxi fare issue was not mentioned given no decision had been rendered by the trial judge, however, the defense alluded to it and indicated it was something that might come up later during the trial. When defense counsel cross-examined the plaintiff-side expert witness whose evidence was that the defendant driver had an opportunity to avoid hitting the plaintiff the night of her injury, he read part of the motor vehicle accident report synopsis that described the plaintiff as running across the street because she was fleeing the taxi fare.

“We immediately stopped everything,” Todorovic says, whose objection was that although the trial judge had not ruled on its admissibility, it was now before the jury and therefore the jury was tainted. Plaintiff counsel suggested that the jury be struck and, if not, the trial judge should provide a very strong charge on the issue of bad character evidence. The trial judge was more concerned with the issue of hearsay rather than bad character evidence.

“There was a bit of a disconnect between plaintiff’s counsel and the trial judge on this issue,” Todorovic notes. “Either way, the defense lawyer claimed he was not trying to besmirch our client’s character but believed it was central to the narrative of why she was running across the street. We already admitted she was running; so, from our perspective, it did not matter why she was running.”

Throughout the trial the defense lawyer continued to bring up the fleeing of the taxi fare before the jury. By the end of the trial, in his closing, he was calling her a criminal who was injured during a “joint venture” with her friend to cheat the taxi driver out of his fare. When it came to the jury charge about bad character evidence, “it was not as strong as we would have liked it to be,” Todorovic says. The jury came back with a zero verdict: no liability against the defendant, and the plaintiff 100% at fault.

The appeal

Plaintiff’s counsel appealed because they felt that the taxi fare evidence was not properly dealt with by the trial judge and which resulted in an unfair trial. Ultimately the Court of Appeal agreed, concluding that it was an unfair trial given how the taxi fare evidence was handled from the start, with no ruling on its admissibility by the trial judge, and because of the defense lawyer’s use of that evidence to besmirch the plaintiff’s character throughout the trial.

“The Court of Appeal found that while the defense lawyer said that he was not intending to besmirch our client’s character, that's exactly what he did for the remainder of the trial,” Todorovic says. “The decision went a step further to say that the prejudicial effect of that evidence was so great that it outweighed its probative value.”

In their analysis, the first issue the Court of Appeal dealt with was that the bad character evidence did not fall under any of the exceptions to its admissibility and given the plaintiff’s injury left her with no memory of the event, she was unable to give her own evidence on what preceded the accident. The next issue the Court of Appeal focused on was how the jury was addressed during defense counsel’s closing. In the wake of the inflammatory address, the trial judge had three options: give the jury correcting instructions, strike the jury, or declare a mistrial. The trial judge opted for the first, but when reading out the charges to the jury, the correcting instructions on the character evidence were not as efficient as they needed to be.

“There was nothing the trial judge could have done to defuse the prejudice already in place against the plaintiff,” Todorovic says. “The well was already tainted.”

Key takeaways

This is an interesting decision because very rarely do jury verdicts get overturned, unless there are overriding circumstances such as in this case, Todorovic notes. It also stands out because of the role bad character evidence played, given it is not something typically seen in the personal injury cases, but more so in the criminal realm where the prosecution wants to bring it in during cross-examination of the accused.

“The Court of Appeal decision is a good one on that front, as it is instructive for future trials where defendants may try to use bad character evidence to get an advantage on plaintiffs.”