Lead Opinion
Under the longstanding law of Georgia, the parties to a lawsuit. have a fundamental right to be present in court during the trial of their case. The issue presented in this appeal is whether a party máy be denied that right and excluded from the courtroom because her physical and mental condition may evoke undue sympathy from the jury and thereby improperly prejudice the other party. This appears to be a question of first impression for Georgia’s appellate courts, likely because exclusion of a party from trial for this reason is such an exceptional event in this State. In this case, however, the trial court excluded Appellant Kyla Kesterson, a young child with severe cerebral palsy, from most of the liability phase of the trial of her and her parents’ lawsuit alleging that her condition was caused by Appellees’ medical malpractice.
The Court of Appeals affirmed that ruling, adopting a test used by the United States Court of Appeals for the Sixth Circuit, which gives the trial court discretion to exclude a civil party when the party’s physical and mental condition may generate jury sympathy and her mental condition precludes her from meaningfully participating in and understanding the proceedings. See Kesterson v. Jarrett,
1. The Court of Appeals accurately described Kyla’s condition and the issues raised by the parties:
Kyla was born with very low “Apgar scorés,” a gross assessment of the infant’s medical condition at specific intervals after birth. Within a day of her delivery, Kyla had a brain ultrasound and CT scan, neither of which revealed any injury. A week later, an MRI of Kyla’s brain revealed damage to parts of the brain that control motor function. Kyla was eventually diagnosed with spastic quadriplegia, a form of cerebral palsy. As a result of this condition, Kyla is unable to control her movements and is confined to a special wheelchair, she has a feeding tube inserted into her stomach, her airway must be suctioned several times a day, she has bladder and bowel dysfunction, she suffers frequentseizures, she has severely limited cognitive function, and she cannot speak.
The Kestersons contended at trial that Kyla’s neurological injuries occurred when she was deprived of oxygen just prior to birth. They argued that [Appellees Walter Jarrett, M.D., Athens Obstetrics and Gynecology, P.C., and St. Mary’s Healthcare System, Inc. d/b/a St. Mary’s Hospital] were negligent in failing to timely recognize the signs of fetal distress and that if Jarrett had performed a Caesarean section earlier, Kyla would not have been injured. The defendants argued that their actions did not fall below the standard of care, that an earlier Caesarian section was not medically indicated, and that Kyla’s cerebral palsy may have resulted from something other than an event that occurred during delivery.
Kesterson, 307 Ga. App. at 245.
After the trial court ordered the bifurcation of the liability and damages issues, Appellees moved to exclude Kyla from the courtroom during the liability phase of the trial, arguing that her presence would be prejudicial to Appellees, she could not meaningfully participate in the trial, and her parents could adequately represent her interests. Appellees did not contend that Kyla should be excluded from the damages phase of the trial. Appellants responded that they did not intend for Kyla to be in the courtroom for any lengthy period, but that she had a constitutional right to be present in court.
The trial court’s written order on Appellees’ motion stated that Kyla would be allowed
in the courtroom at the time of the call of the case for trial immediately prior to voir dire of the jury panel. After introduction of [Kyla] to the jury panel, the child’s presence during the liability phase of the trial shall not be allowed until the Court, outside of the jury’s presence, determines that the presence of such child is essential and relevant to witness testimony related to medical conditions affecting said child which resulted from alleged negligent acts by one or more Defendants. The Court shall allow the presence of [Kyla] in the courtroom during the damages phase of the trial, if reached, during those periods of time that her presence is needed with respect to the issue of Plaintiffs’ claim for damages. However, the Court reserves the right to remove [Kyla] from the courtroom at any time the Court perceives that her actions are distracting or disruptive to the proceedings or otherwise result in potential prejudice to one or more of the Defendants.
During the liability trial, the trial court twice denied the Kestersons’ request to bring Kyla into the courtroom but granted one such request. See Kesterson,
On appeal, the Kestersons contended that the trial court erred in limiting Kyla’s presence in the courtroom. Finding no Georgia case directly addressing the issue, the Court of Appeals adopted the test set forth by the Sixth Circuit in Helminski,766 F2d at 218, with some procedural additions. See Kesterson,
a trial court has the discretion to limit a severely injured plaintiff s presence during the liability phase of a bifurcated trial when, after an evidentiary hearing upon a written motion and after an opportunity to observe the plaintiff, the court makes the following factual findings in a written order: (1) the plaintiff is severely injured; (2) the plaintiff attributes those injuries to the conduct of the defendant(s); (3) there is a substantial likelihood that the plaintiffs presence in the courtroom will cause the jury to be biased toward the plaintiff based on sympathy rather than the evidencesuch that the jury would be prevented or substantially impaired from performing its duty; (4) the plaintiff is unable to communicate with counsel or to participate in the trial in any meaningful way; and (5) the plaintiff is unable to comprehend the proceedings. When all of those circumstances exist, the plaintiff’s presence is not truly an exercise of his or her right to be present, because the plaintiff is incapable of making such a conscious choice. As in this case, the plaintiff functions almost as an exhibit, as a piece of evidence.
Kesterson,
The Court of Appeals concluded that the trial court had made all but the third finding of this test, noting that “[i]t did not make an explicit finding in its order or elsewhere on the record that there is a substantial likelihood that Kyla’s presence in the courtroom would cause the jury to be biased toward her based on sympathy rather than the evidence.” Id. at 250. However, the Court of Appeals deemed this error harmless and affirmed the trial court’s judgment. See id. at 251.
We granted Appellants’ petition for certiorari.
2. (a) The right of a natural party to be present in the courtroom when her case is being tried is deeply rooted in the law of this nation and, if anything, even more embedded in the law of this State.
The right to be present is also reflected textually in our State Constitution, in the provision guaranteeing to every person “the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Ga. Const. of 1983, Art. I, Sec. I, Par. XII. See Smith v. Baptiste,
The right of parties to be present in court when their causes are heard is undoubtedly
(b) Like most other rights, the right to be present may be waived or forfeited by a party. A party may choose not to attend all or part of her trial, see Hill v. State,
“The right [to be present] is waived if the defendant personally waives it in court; if counsel waives it at the defendant’s express direction; if counsel waives it in open court while the defendant is present; or if counsel waives it and the defendant subsequently acquiesces in the waiver.”
Id. (citation omitted).
Going back to our 1874 decision in Tift v. Jones, we have also upheld the discretion of trial courts to reconcile the right to be present in court with the venerable rule of sequestration of witnesses by requiring a party who plans to testify in a civil case to choose between testifying first or leaving the courtroom until the time that she testifies. See
A party may also forfeit the right to be in court by disrupting “ ‘the decorum and respect inherent in the concept of courts and judicial proceedings,’ ” although trial courts must use care in excluding a party for this reason and the right to be present may be reclaimed if the party becomes willing and able to be non-disruptive. See Weaver v. State,
(c) Instead, Kyla was excluded from most of the trial of her case because of concern that her physical and mental condition would cause the jury to be biased — unduly sympathetic toward her. The trial court was right to be concerned about jury sympathy. All of the parties in a case are entitled to a fair trial, and one element of a fair trial is that decisions by the jury and the judge be based solely on the evidence and the law, and not on bias — sympathy for or prejudice against one party or the other that is not based solely on the evidence. See Smith v. Phillips,
But concern about inappropriate jury sympathy is not unusual in litigation, particularly in tort cases, where the plaintiffs often allege that the defendants caused serious injuries or death, and criminal cases, where the defendants are often similarly alleged to have caused serious injury or death to individual victims or serious harm to the entire community. In our legal tradition, however, this concern is not resolved by excluding parties from the proceedings. Instead, the risk of improper sympathy is addressed as are other concerns about the jury deciding the case on an improper ground.
Venue maybe changed. See, e.g., OCGA § 9-10-50 (a) (providing that if, as a result of voir dire, “the presiding judge is satisfied that an impartial jury cannot be obtained in the county where any civil case is pending, the civil case may be transferred to any county that may be agreed upon by the parties or their counsel”). Questions may be asked in voir dire and prospective jurors excused for cause or peremptorily. See, e.g., Kim v. Walls,
Most importantly, the jury can be instructed not to consider sympathy in its deliberations — a standard jury instruction in both civil and criminal cases that may be supplemented when the risk of sympathy is higher than normal. See Suggested Pattern Jury Instructions, Vol. I: Civil Cases, § 02.550 (2010); Suggested Pattern Jury Instructions,
These manifold protections of the right to a fair trial, the outcome of which must be the product of reason rather than sympathy or other emotion, are employed on a daily basis, in the sound discretion of judges, in courtrooms across Georgia. What is unusual—exceptional —is to exclude a party from the courtroom because of concern that her physical and mental condition will prevent the jury, notwithstanding all of these other measures, from doing its job. There is no precedent in this State for doing such a thing in a case like this.
(d) Appellees and the Court of Appeals cite Willingham v. Willingham,
This case before us now does not involve a bench trial conducted under unusual and looser rules, but rather a case which the parties had a constitutional right to have a jury decide and in which the court was to apply the usual rules. The “principal consideration” at issue here is not the best interests of a non-party, but whether Appellees committed malpractice against Kyla and, if so, what damages Appellants should recover. And the trial court did not exclude both parties; it excluded only one side to the dispute. Unlike in Willingham, therefore, we can see how the trial court’s decision “could possibly have operated to the injury” of Appellants, and we do not see Willingham as precedent for excluding a party from a typical civil trial.
(e) Given the deep and strong roots of the right of a party to be present at her trial, and the absence of any known precedent in this State for depriving a party of that right in a civil case like this, the heavy burden is on Appellees to show that such deprivation was necessary to protect their right to a fair trial — that no alternative remedy would do. The record, however, does not show that Appellees sought the alternative remedies discussed above before demanding Kyla’s exclusion or that the trial court considered those approaches in lieu of barring her from the courtroom.
Moreover, Appellees’ ability to ever make such a showing is undermined by their
“[i]f the trial court concludes that the party can comprehend the proceedings and assist counsel in any meaningful way, the party cannot be involuntarily excluded regardless of prejudicial impact, in such a case, cautionary instructions will protect the interests of the defendants in a fair trial. ”
Kesterson,
Other courts have also made the.point that a party’s physical condition alone, no matter how evocative, cannot support her exclusion from trial. See, e.g., Cary v. Oneok, Inc.,
should not be tempered by the physical condition of the litigant. It would be strange, indeed, to promulgate a rule that a plaintiffs right to appear at his own trial would depend on his personal attractiveness, or that he could be excluded from the court room if he happened to be unsightly from injuries which he was trying to prove the defendant, negligently caused.
Florida Greyhound Lines v. Jones, 60 S2d 396, 397 (Fla. 1952).
Under the law of the land and the ambit of our Constitution, a person does not sacrifice her “right to prosecute ... in person ... that person’s own cause in ... the courts of this state” just because she is unattractive, or disfigured, or handicapped—even to a much greater extent than Kyla. The risk of inappropriate sympathy can and must be addressed through the many other remedies discussed above.
(f) Thus, even Appellees, the Court of Appeals, and other courts that have upheld the deprivation of a party’s right to be present for trial based on the jury bias concerns that might arise from her physical and mental condition have acknowledged that such exclusion is not necessary to ensure the right to a fair trial. The argument for exclusion from trial therefore boils down to the assertion that the right to be present does not matter to a legally incompetent party, so that depriving her of that right is subject to a more lenient test. The test set forth in Helminski and endorsed by the Court of Appeals is premised on findings that the excluded party “is unable to communicate with counsel or to participate in the trial in any meaningful way; and... is unable to comprehend the proceedings.” Kesterson,
We see no need, however, to open the door to discretionary exclusion of parties from their trials even to this limited degree. To begin with, Appellees, the trial court, and the Court of Appeals cited no prior decision from the courts of this State holding that the right of a party to be present at trial turns on the party’s legal competence, although cases involving parties with disputed competence have always existed.
Nor do we think that the right to be present turns entirely on this issue. It may be that the right is founded, in large part, on what the party can do for her lawsuit — the idea that the right allows litigants to contribute actively to their own cases, whether through self-representation or by assisting counsel. Someone who is legally incompetent may not do the former, see Lamar v. State,
As best we can tell, Georgia courts have never conditioned the right to be present on proof that the party is legally competent, or that she will actually pay attention to the proceedings and actively participate in them. Thus, for example, a person who is incompetent under the Helminski test and has been ordered hospitalized or treated involuntarily would still have a right to be present during any subsequent hearings to determine whether her involuntary treatment should continue.
There is, in other words, a personal element to the right to be present. The right is based not only on what the party can do to the case, but on what the case will do to the party. It is the party’s interests that are being determined by the jury and the judge, and it is the party’s life that will be directly affected by the outcome of the case. See Cary,
Moreover, the trial court ruled, and Appellees and the Court of Appeals do not dispute the court’s discretion to make this ruling, that if Kyla’s physical or mental condition became “essential and relevant” to an issue during the liability phase, the court would permit Appellants to show and describe this “piece of evidence,” Kesterson,
The trial court here did not explain why the test for admission of this type of evidence should be that it be “essential and relevant,” rather than merely relevant. But in any event, the trial court permitted testimony about Kyla’s condition and allowed Kyla to be present in court at the start of voir dire and for a portion of the cross-examination of one of Appellees’ expert witnesses; presumably, the court also would have allowed in photographs or videotapes depicting Kyla’s appearance to the extent it was relevant to the issue of what caused her injuries.
Furthermore, had the jury found liability, under the Court of Appeals’ Helminski-based test, Kyla would have been allowed to be present in court throughout the damages phase of the trial — a phase which, of course, can result in an element of the jury verdict that may be even more subject to distortion due to sympathy than the liability phase. See Kesterson,
All of this makes the test the Helminski court crafted and the Court of Appeals adopted even more arbitrary and disputable in actual application. The party whose physical and mental condition is supposedly so sympathy-evoking that no means short of barring her from her own trial will protect the other side’s right to a fair trial may nevertheless not be barred from trial. See Kesterson,
(g) We recognize that the Helminski test endorsed by the Court of Appeals is strict, and it would open the door to excluding parties from their trials only in narrow circumstances. Nevertheless, as Appellees and the authorities on which they rely acknowledge, the door would not be opened even a crack if the party at issue were legally competent — even if the sympathy potentially
Our conclusion is in line with that of many other state and federal courts. See, e.g., Jordan v. Deery,
We reiterate in closing that our decision should not be read to limit a trial court’s discretion to control the courtroom and ensure the orderly and dignified adjudication of cases. If, for example, a party’s physical and mental condition is fabricated for trial or is excessively paraded to the jury, it might be appropriate to sanction the party with exclusion from part or all of the proceeding. Similarly, a party who disrupts the proceedings, even if that disruption is the result of her physical and mental condition or efforts to treat or respond to it, might be excluded if that is the remedy for that problem, as with courtroom disruptions caused by other things. See Cary,
For these reasons, the exclusion of Appellant Kyla Kesterson from the courtroom during almost all of her trial was error, and she is entitled to a new trial. See St. Paul Fire & Marine Ins. Co.,
Judgment reversed and case remanded.
Notes
We note that the cases discussed in our opinion have all involved parties who are natural persons. Our decision therefore does not address the rights of corporate, governmental, and other such entities. See Eckles v. Atlanta Tech. Group,
The 1983 Constitution revised the prior version of Paragraph XII slightly to clarify that a person is not entitled to “hybrid” representation, with the party actively participating in trial as co-counsel with a lawyer, which can lead to confusion. See Nelms,
The new Georgia Evidence Code provides that the rule of sequestration “shall not authorize exclusion of. .. [a] party who is a natural person.” OCGA § 24-6-615 (effective Jan. 1, 2013). The Reporter for the State Bar of Georgia’s Evidence Study Committee, which urged the adoption of the evidence code, says that § 24-6-615 “prohibits sequestration of a party, hut the trial court still has discretion under new Georgia Code Section 24-6-611 (a) to require that a party testify before other witnesses,” consistent with current practice. Paul S. Milich, Georgia’s New Evidence Code-An Overview, 28 Ga. St. U. L. Rev. 379,404-405 (2012). This issue need not be decided in this case.
Sections 02.550 and 1.70.11 both provide as follows:
Your verdict should be a true verdict based upon your opinion of the evidence according to the laws given you in this charge. You are not to show favor or sympathy to one party or the other. It is your duty to consider the facts objectively without favor, affection, or sympathy to either party.
In deciding this case, you should not be influenced by sympathy or prejudice (because of race, creed, color, religion, national origin, sexual preference, local or remote residence, economic (or corporate) status) for or against either party.
See OCGA § 37-3-1 (8) (“mentally ill” persons who are required to undergo involuntary treatment are entitled to “full and fair hearings” under OCGA §§ 37-3-83 and 37-3-93, including the “right to be present,” unless waived, to determine if the involuntary treatment should continue). For purposes of Title 37 “‘[m]entally ill’ means having a mental illness,” OCGA § 37-1-1 (13), and “ ‘[mjental illness’ means a disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life,” OCGA§ 37-1-1 (12).
The trial court excluded some video clips and photographs of Kyla during the liability phase of the trial on the ground that those materials were not relevant to the cause of her injuries, only damages, and the Court of Appeals found no abuse of discretion in that ruling. See Kesterson,
The parties here, for example, devote substantial briefing to disputes over whether, under the Helminski test, the trial court should have allowed Kyla to be present for two additional (says Appellants) or one fewer (says Appellees) portions of the liability trial.
Our resolution of this issue makes it unnecessary to consider the potential application of the Americans with Disabilities Act (ADA), 42 USC § 12101 et seq., to decisions excluding disabled persons from the courtroom — an issue that was not raised and ruled on below but might need to be addressed in the future if we affirmed the Court of Appeals. See Jordan,
Dissenting Opinion
dissenting.
In Helminski v. Ayerst Labs., 766 F2d 208 (6th Cir. 1985), the United States Court of Appeals set forth a test which strictly guards the rights of an impaired party to be present during his or her trial. At the same time, the Helminski test recognizes that, in some rare cases, the party may be so impaired that she cannot assist her counsel or understand the proceedings in any way and, at the same time, the impaired party’s presence in the courtroom may impede the proper functioning of the jury. Under these rare circumstances, the Helminski test would allow the trial court to limit the presence of the impaired party during the liability phase of trial. In other words, the Helminski test is narrowly drafted to allow exclusion of an impaired party only when the party’s presence would harm the judicial process while simultaneously providing no benefit to the party. I believe that the majority errs by rejecting this test. As a result, I must respectfully dissent.