A New Trial After Closing Arguments Falsely Suggesting that Excluded Evidence did not Exist

Jackson v. Park (2021) 66 Cal.App.5th 1196

The Defendant in a vehicle collision case conceded liability; however, they disputed damages and punitive damages. The trial court excluded evidence of the defendant's arrest for driving under the influence, as the defendant had a blood alcohol level over 0.15% at the time of the collision. Their exclusion was due to a lack of foundational testimony regarding the blood alcohol test. During the case though, the arresting officer and one expert were allowed to testify about the results of a field sobriety exam administered following the accident. During the closing argument, the defense counsel exploited the court's in limine order by falsely suggesting that there wasn't evidence that the Defendant was intoxicated. In addition, they claimed that the judge's instruction was that the only evidence of intoxication was "suspicion" by the arresting officer.

Based on these closing arguments and other improper findings, the Plaintiff requested a new trial, which the Trial Court granted. The Court of Appeal affirmed this, stating that “It is improper for counsel to assert or imply facts not in evidence that counsel knows excluded evidence could refute.”

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