| 词汇 | New Trial/Retrial |
| 释义 | `1`New Trial/Retrial `2` "Legal Lexicon": NEW TRIAL/RETRIAL - A completed trial that has been set aside and tried again from scratch as opposed to a mistrial which is terminated prior to its conclusion and then tried again. A reexamination of an issue in fact before a court and jury,which had been tried at least once before the same court and a jury. A new trial is warranted on the ground of attorney misconduct during the trial where the "'flavor of misconduct . . . sufficiently permeate[s] an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.'" Kehr, 736 F.2d at 1286 (quoting Standard Oil Co. of California v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965)). Where misconduct permeates the proceeding, the jury is "necessarily prejudiced." Id. "[C]onstant objections are certainly not required, as they could antagonize the jury . . . ." Id. Counsel repeatedly and impermissibly elicited testimony and made reference to matters previously ruled inadmissible "with the sole purpose of bringing to the jury something it should not have heard." County of Maricopa v. Maberry, 555 F.2d 207, 219 (9th Cir. 1977). "Code of Civil Procedure section 657 provides in part: A new trial shall not be granted . . . upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury should have reached a different verdict or decision. Accordingly, in deciding whether to grant a new trial the trial court must independently weigh the evidence and assess whether it sufficiently supports the jury's verdict. . . . . As a corollary to this rule, the trial court's ruling is entitled to great weight on appeal." Fortman v. Hemco Inc. (1989) 211 Cal.App.3d 241, 257-258. The origin of the practice of granting new trials is concealed in the night of time. Formerly new trials could be obtained only with the greatest difficulties, but by the modern practice they are liberally granted in furtherance of justice. The reasons for granting new trials are numerous and may be classed as follows: Matters which arose before and in the course of trial. These are, 1st. Want of due notice. Justice requires that the defendant should have sufficient notice of the time and place of trial; and the want of it, unless it has been waived by an appearance, and making defence, will, in general, be sufficient to entitle the defendant to a new trial. But the insufficiency of the notice must have been calculated reasonably to mislead the defendant. The irregular impanneling of the jury; for example, if a person not duly qualified to serve be sworn or if a juror not regularly summoned and returned personate another. In Pennsylvania, by statutory, provision, going on to trial will cure the defect, both in civil and criminal cases. 3d. The admission of illegal testimony. 4th. The rejection of legal testimony. But a new trial will not be granted for the rejection of a witness on the supposed ground of incompetency, when another witness establishes the same fact, and it is not disputed by the other side. 5th. The misdirection of the judge. The acts of the prevailing party, his agents or counsel. For example, when papers not previously submitted, are surreptitiously handed to the jury, being material on the point in issue. Or if the party, or one on his behalf, directly approach a juror on the subject of the trial. But if the other party is aware of such attempts and he neglects to correct them when in his power, this will not be a sufficient reason for granting a new trial. When indirect measures have been resorted to to prejudice the jury or tricks practiced or disingenuous attempts to suppress or stifle evidence or thwart the proceedings or to obtain an unconscientious advantage or to mislead the court and jury they will be defeated by granting a new trial. New Trial/Retrial2 |
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