Castellani, R., Aplts. v. Scranton Times ( 2015 )

[J-26-2015] [MO: Baer, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
RANDALL A. CASTELLANI AND JOSEPH : No. 117 MAP 2014
J. CORCORAN, :
: Appeal from the order of the Superior Court
Appellants : at No. 907 MDA 2012 dated March 11,
: 2014 affirming the order of the Lackawanna
: County Court of Common Pleas, Civil
v. : Division, at No. 2005 CV 69 dated August
: 19, 2011.
:
THE SCRANTON TIMES, L.P. T/D/B/A : ARGUED: April 8, 2015
THE SCRANTON TIMES AND THE :
TRIBUNE AND JENNIFER L. HENN, :
:
Appellees :
CONCURRING AND DISSENTING OPINION
MR. JUSTICE EAKIN DECIDED: October 27, 2015
I agree with the Majority that Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899(Pa. 2007), imposed no requirement of verifiability, and that the judicial opinions are not
inadmissible hearsay when offered solely to prove actual malice. See Majority Slip Op.,
at 23-24. All agree they are hearsay opinions about falsity and thus not admissible on
the issue of falsity. I dissent because I believe a limiting instruction is insufficient to
ensure the jury will not consider these opinions as proof the publications were in fact
false; it would be asking the impossible of jurors to do so, and thus, I find them unfairly
prejudicial if admitted before the jury finds the articles are in fact false.
With all due respect to counsel’s choice of trial strategy, that “right” is hardly
sacrosanct or absolute, nor is it even remotely of constitutional magnitude. There are
always considerations that can cause counsel’s plans to give way, particularly where
strategy confounds the prospects of a fair verdict — a fair trial must trump a lawyer’s
strategy every time. And there really is but one strategic reason to insist on introducing
the opinions before proving the articles are false, and that reason is obvious — limiting
instruction or no, judicial opinions saying the articles are false simply cannot be ignored
by jurors who have the task of deciding whether those articles are false. No other
reasonable strategic rationale appears, and it is a good strategy, for after having heard
that evidence, can we honestly believe the jury could return with a verdict that says those
judges lied, that despite what these judges said, the articles are not false?
The Majority states the proposed limiting instruction is sufficient to cure any unfair
prejudice and preclude the jury from considering the opinions when determining falsity.
See id., at 26 (“[T]he potential for the jury to consider the judicial opinions for an improper
basis H can be ameliorated by a limiting instruction to the jury that it alone must decide
whether the Newspaper’s articles were published with malice, and the judicial opinions
were offered for the limited purpose of supporting [a]ppellants’ claim in this regard.”).
With all respect, in my view, this general notion of “amelioration by instruction” is
unrealistic here. The evidence of malice and falsity cannot be sequestered by merely
instructing the jury to ignore the judges’ statements that the articles are false before
deciding whether the articles are, in fact, false. See generally McCormick on Evidence §
59, at 408-09 (7th ed. 2013) (“Some hearsay problems cry out for the invocation of Rule
403. Assume that the proponent offers an out-of-court statement for a nonhearsay
purpose but on its face the declaration asserts facts directly relevant to a critical issue in
the case and the declarant would presumably have personal knowledge of the facts.
Here common sense suggests that there is a grave risk that the jurors will misuse the
testimony as substantive evidence.”).
[J-26-2015] [MO: Baer, J.] - 2
While jurors are generally presumed to follow a court’s instructions,
Commonwealth v. Chmiel, 30 A.3d 1111, 1147 (Pa. 2011) (citation omitted), the issue is
whether McCormick’s manifest “grave risk” should be ignored in this unique
circumstance. I simply cannot agree the jurors will be able to disregard statements
made by two judges opining on facts that are required for the very basic determination the
jurors are to make. No matter the length or repetition of precise and completely
understandable legal instructions, no matter the jurors’ desire to abide thereby, we cannot
unring this bell. Do we really think the jurors will compartmentalize this manifestly
pertinent evidence, turning a deaf ear and a blind eye to judicial statements, simply by
telling them not to consider it? Cf. Nipper v. Snipes, 7 F.3d 415, 418 (4th Cir. 1993)
(“[J]udicial findings of fact present a rare case where, by virtue of their having been made
by a judge, they would likely be given undue weight by the jury, thus creating a serious
danger of unfair prejudice.” (citations and internal quotation marks omitted)). This is a
prospect so unlikely that we should not give it our imprimatur.
The cure would not be complicated. A simple bifurcated trial on the questions of
malice and falsity would eliminate the fiction that a jury could disregard the inadmissible
evidence. That is, if the jury finds the articles were false, without hearing of the
inadmissible judicial statements opining on falsity, that finding is fair; we are assured the
prejudicial hearsay evidence was not considered. Only then would ex parte opinions on
falsity be given to them, as evidence unique to the second question, malice. I view this
as the best safeguard against unfair prejudice while providing appellants the latitude to
present their case as they see fit.
For these reasons, I respectfully dissent.
[J-26-2015] [MO: Baer, J.] - 3