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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.

The misconduct of the jury, as if they acted in disregard of their oaths drinking spirituous liquors, after being charged with the cause or resorting to artifice to get rid of their confinement and such like causes will avoid a verdict.

Cases in which the verdict is improper, because it is either void, against law, against evidence or the damages are excessive. 1. When the verdict is contrary to the record or it finds a matter entirely out of the issue or finds only a part of the issue or when it is uncertain a new trial will be granted. 2. When the verdict is. clearly against law, and injustice has been done, it will be set aside. 3. And so will a verdict be set aside if given clearly against evidence, and the presiding judge is dissatisfied.. 4. When the damages are excessive, and appear to have been given in consequence of prejudice, rather, than as an act of deliberate judgment.

Cases in which the party was deprived of his evidence by accident or because he was not aware of it. The non-attendance of witnesses, their mistakes, their interests, their infirmities, their bias, their partial or perverted views of facts, their veracity, their turpitude, pass in review, and in proportion as they bear upon the merits avoid or confirm the verdict. The absence of a material piece of testimony or the non-attendance of witnesses, contrary to reasonable expectation, and reasonably accounted for, will induce the court to set aside the verdict, and grant a new trial if the witness absent himself with out the party's knowledge after the cause is called on or is suddenly taken sick and the like. The court will also grant a new trial when the losing party has discovered material evidence since the trial, which would probably produce, a different result; this evidence must be accompanied by proof of previous diligence to procure it. To succeed, the applicant must show four things: 1. The names of the new witnesses discovered. 2. That the applicant has been diligent in preparing, his cage for trial. 3. That the new facts were discovered after the trial and will be important. 4. That the evidence discovered will tend to prove facts which were not directly in, issue on the trial, or were not then known and investigated by proof. 9. New trials may be granted in criminal as well as in civil cases when the defendant is convicted, even of the highest offences. But when the defendant is acquitted, the humane influence of the law, in cases of felony, mingling justice with mercy, does not permit a new trial. In cases of misdemeanor, after conviction a new trial may be granted in order to fulfil the purpose of substantial justice; yet, there are no instances of new trials after acquittal unless in cases where the defendant has procured his acquittal by unfair practices.

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