Rufo v. OJ Simpson - Right Of Publicity

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Page 34 otherwise affiliated with any of the law enforcement agencies listed above [which included District Attorney] or any other law enforcement organization" Upon questioning by the court the juror stated she had inadvertently answered no while rushing to complete the questionnaire, and that she should have answered yes and disclosed her daughter's employer. The juror stated she had not met Christopher Darden. Simpson moved for a mistrial on the ground the juror had concealed material information on voir dire that if disclosed would have led the defense to peremptorily excuse her. The trial court denied a mistrial but removed juror number 7 from the jury on the ground her answer to a clear and unequivocal question on the questionnaire omitted material information. The court then replaced her with an alternate and instructed the jurors to disregard prior deliberations and begin their deliberations anew. Thus the jury which rendered the verdict, after three days of new deliberations, did not include the offending juror number 7. Simpson contends the court should have [**76] granted a mistrial instead of simply removing the juror. He bases this argument on nothing more than the legal rule that a juror's concealment of material information on voir dire is serious misconduct which raises a "presumption of prejudice." ( Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 416, 185 Cal. Rptr. 654, 650 P.2d 1171; In re Hitchings (1993) 6 Cal. 4th 97, 119, 860 P.2d 466; People v. Blackwell (1987) 191 Cal. App. 3d 925, 929, 236 Cal. Rptr. 803; People v. Diaz (1984) 152 Cal. App. 3d 926, 934, 200 Cal. Rptr. 77.) Simpson did not contend nor produce any evidence, in either his motion for mistrial or subsequent motion for a new trial, that PAGE 28 86 Cal. App. 4th 573, *612; 2001 Cal. App. LEXIS 41, **76; 103 Cal. Rptr. 2d 492, ***519; 2001 Cal. Daily Op. Service 759 juror number 7 communicated to the other jurors any outside information or otherwise committed any deliberative misconduct. He relies solely on the legal presumption of prejudice.
Page 35 But the presumption of prejudice from juror misconduct "is not conclusive; it may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to [*613] determine whether there is a reasonable probability of actual harm to [**77] the complaining party resulting from the misconduct." ( Hasson v. Ford Motor Co., supra, 32 Cal. 3d at p. 417.) Our examination of the entire record shows there is no reasonable probability of actual harm to Simpson, because the offending juror was removed and replaced by an alternate, and the newly-constituted jury began deliberations anew before rendering the verdict. The presumption of prejudice is rebutted [***520] by the fact of the timely removal of the offending juror. When juror misconduct is discovered before a verdict is reached, the trial court has a choice among several remedies, one of which is to discharge the offending juror and replace the juror with an alternate. (Code Civ. Proc., @ 233 ; Garden Grove School Dist. v. Hendler (1965) 63 Cal. 2d 141, 145, 45 Cal. Rptr. 313, 403 P.2d 721; Wegner, Fairbank & Epstein, Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 1999) P 15:266, p. 15-46.) Ordinarily the less drastic remedy is preferable to requiring a whole new trial; the remedy of mistrial is for those rare cases where the trial court in its discretion concludes the misconduct of the juror has already [**78] caused such irreparable harm that only a new trial can secure for the complaining party a fair trial. (Wegner, Fairbank & Epstein, supra, PP 12:186, 12:189, 12:192, 15:265, 15:271, pp. 12-37, 12-38, 12-39, 15-46; 2 Cal. Trial Practice: Civil Procedure During Trial (Cont.Ed.Bar 3d ed. 2000) @ 17.26, p. 1059; Cal. Judges Benchbook: Civil Trials (CJER 1981) Mistrials, @ 10.4, p. 328; 7 Witkin, Cal. Procedure (4th ed. 1997) Trial, @ 181, p. 208.) Simpson offers no reason or argument why the remedy of removing the juror was not sufficient to remedy the harm in this particular case. The trial court did not abuse its discretion in denying a mistrial.
Page 1 and 2: Page 1 SHARON RUFO et al., Plaintif
Page 3 and 4: Page 3 Other physical evidence from
Page 5 and 6: Page 5 People v. McCray (1997) 58 C
Page 7 and 8: Page 7 Nancy Ney was a director of
Page 9 and 10: Page 9 Simpson contends "a period o
Page 11 and 12: Page 11 kill her, but also serves t
Page 13 and 14: Page 13 Cal. 3d 573, 584-587, 209 C
Page 15 and 16: Page 15 and to explain her conduct
Page 17 and 18: Page 17 weighing process, shows the
Page 19 and 20: Page 19 evidence about any score on
Page 21 and 22: Page 21 implanted in the minds of t
Page 23 and 24: Page 23 29B pt. 4 West's Ann. Evid.
Page 25 and 26: Page 25 - - - - - - - - - - - - - -
Page 27 and 28: Page 27 be bound by the manner in w
Page 29 and 30: Page 29 head. Simpson appears to re
Page 31 and 32: Page 31 by SID in the laboratory, b
Page 33: Page 33 opinion as to the validatio
Page 37 and 38: Page 37 - - - - - - - - - - - - - -
Page 39 and 40: Page 39 jury award, however, was in
Page 41 and 42: Page 41 Punitive damages are not aw
Page 43 and 44: Page 43 Freeman also reviewed the d
Page 45 and 46: Page 45 memorabilia shop in Manhatt
Page 47 and 48: Page 47 likeness in the future; Sim
Page 49 and 50: Page 49 italics added.) In Devlin v
Page 51 and 52: Page 51 limited economic damages re
Page 53 and 54: Page 53 PAGE 38 86 Cal. App. 4th 57
Page 55 and 56: Page 55 PAGE 39 86 Cal. App. 4th 57

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