criticism rule in Washington

2007Even if we were to declare the comment improper, the criticism of defense counsel was far too attenuated to have been prejudicial; little likelihood — certainly not a “substantial likelihood” — exists that the comment “affected the jury’s verdict.” Brown, 132 Wn.2d at 561 . b.

2007Even if we were to declare the comment improper, the criticism of defense counsel was far too attenuated to have been prejudicial; little likelihood — certainly not a "substantial likelihood" — exists that the comment "affected the jury's verdict." Brown, 132 Wash.2d at 561 , 940 P.2d 546 . b.

2021We consider the criticism of the privilege only insofar as it is relevant to the purposes served by the privilege. 11 No. 82053-2-I/ 12 U.S. 40 , 52-53, 100 S. Ct. 906 , 63 L.

2021We consider the criticism of the privilege only insofar as it is relevant to the purposes served by the privilege. 11 No. 82053-2-I/ 12 U.S. 40 , 52-53, 100 S. Ct. 906 , 63 L.

2007Even if we were to declare the comment improper, the criticism of defense counsel was far too attenuated to have been prejudicial; little likelihood — certainly not a "substantial likelihood" — exists that the comment "affected the jury's verdict." Brown, 132 Wash.2d at 561 , 940 P.2d 546 . b.

1983This, however, is not a criticism of the instruction, but a recognition of its probable coercive effect when the jurors knew that the trial court had been advised how they stood on the merits of the case. 73 Wn.2d at 975-76 .

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962See cases cited, footnotes 5-11, infra. 5 Ralton v. Sherwood Logging Co., 54 Wash. 254 , 103 Pac. 28 (1909) (affidavit that juror did not consider certain instructions excluded); State v. McKenzie, 56 Wn. (2d) 897, 355 P. (2d) 834 (1960) (error to consider affidavit that a juror argued the law contrary to court’s instructions) . 6 O’Brien v. Seattle, 52 Wn. (2d) 543, 327 P. (2d) 433 (1958) (error to question whether conversation of a juror with bailiff influenced verdict); Johnston v. Sound Transfer Co., 53 Wn. (2d) 630, 335 P. (2d) 598 (1959) (affidavits of jurors concerning statements made b

1962Co., 75 Wash. 430 , 134 Pac. 1097 (1913) in which the court held that a motion for a new trial based upon an occurrence not in open court must be shown by affidavit. 3 For a criticism of the rule, see 8 Wigmore, Evidence (McNaughton Rev. 1961) § 2352, et seq. 4 This is subject, of course, to the statutory exception of a verdict determined by chance or lot.

1962Co., 75 Wash. 430 , 134 Pac. 1097 (1913) in which the court held that a motion for a new trial based upon an occurrence not in open court must be shown by affidavit. 3 For a criticism of the rule, see 8 Wigmore, Evidence (McNaughton Rev. 1961) § 2352, et seq. 4 This is subject, of course, to the statutory exception of a verdict determined by chance or lot.

1948If the instruction stood alone and no reference had been made by the court to the contributory negligence of plaintiff, if any, it would be subject to the criticism made, and necessitate a reversal; but we find the court fully covering this defense by proper instructions concerning contributory negligence, which are quoted in the opinion. *192 In the case cited, this court observed that: “Very few instructions of a court would pass a critical review if small excerpts are taken, without reference to the context or other matter included in the charge.” The cases of Fichtenberg v. Lincoln County,

1948If the instruction stood alone and no reference had been made by the court to the contributory negligence of plaintiff, if any, it would be subject to the criticism made, and necessitate a reversal; but we find the court fully covering this defense by proper instructions concerning contributory negligence, which are quoted in the opinion. *192 In the case cited, this court observed that: “Very few instructions of a court would pass a critical review if small excerpts are taken, without reference to the context or other matter included in the charge.” The cases of Fichtenberg v. Lincoln County,

1948If the instruction stood alone and no reference had been made by the court to the contributory negligence of plaintiff, if any, it would be subject to the criticism made, and necessitate a reversal; but we find the court fully covering this defense by proper instructions concerning contributory negligence, which are quoted in the opinion. *192 In the case cited, this court observed that: “Very few instructions of a court would pass a critical review if small excerpts are taken, without reference to the context or other matter included in the charge.” The cases of Fichtenberg v. Lincoln County,

1948If the instruction stood alone and no reference had been made by the court to the contributory negligence of plaintiff, if any, it would be subject to the criticism made, and necessitate a reversal; but we find the court fully covering this defense by proper instructions concerning contributory negligence, which are quoted in the opinion. *192 In the case cited, this court observed that: “Very few instructions of a court would pass a critical review if small excerpts are taken, without reference to the context or other matter included in the charge.” The cases of Fichtenberg v. Lincoln County,

1948If the instruction stood alone and no reference had been made by the court to the contributory negligence of plaintiff, if any, it would be subject to the criticism made, and necessitate a reversal; but we find the court fully covering this defense by proper instructions concerning contributory negligence, which are quoted in the opinion. *192 In the case cited, this court observed that: “Very few instructions of a court would pass a critical review if small excerpts are taken, without reference to the context or other matter included in the charge.” The cases of Fichtenberg v. Lincoln County,

1940Answering an identical criticism of an instruction in the case of Rich v. Campbell, 164 Wash. 393 , 2 P. (2d) 886 , this court said: “While in some of our decisions it has been held that an instruction given in the language last above quoted [slightest negligence] is not erroneous as stating the degree of negligence rendering a carrier for hire liable to his passenger, in none of our decisions has it been held erroneous to refuse to give such an instruction, when an instruction is given in substance in the language given by the court in this case.” Following the above quotation, the opinion in

1940Answering an identical criticism of an instruction in the case of Rich v. Campbell, 164 Wash. 393 , 2 P. (2d) 886 , this court said: “While in some of our decisions it has been held that an instruction given in the language last above quoted [slightest negligence] is not erroneous as stating the degree of negligence rendering a carrier for hire liable to his passenger, in none of our decisions has it been held erroneous to refuse to give such an instruction, when an instruction is given in substance in the language given by the court in this case.” Following the above quotation, the opinion in

1940Co., 47 Wash. 503 , 92 Pac. 284 , as follows: “ ‘The further statement that the appellant “is liable for the slightest negligence in said operation,” is but a corollary of the rule already announced, or at least was evidently so intended by the court.’ ” Error is also assigned, as to instruction No. 8, on the ground that, in submitting the instruction to the jury, the trial court attempted to obliterate the word “slightest,” originally appearing therein, by superimposing pencil marks upon it, and that by such *270 attempted obliteration the court unduly influenced the jury to disregard the ver

1940Co., 47 Wash. 503 , 92 Pac. 284 , as follows: “ ‘The further statement that the appellant “is liable for the slightest negligence in said operation,” is but a corollary of the rule already announced, or at least was evidently so intended by the court.’ ” Error is also assigned, as to instruction No. 8, on the ground that, in submitting the instruction to the jury, the trial court attempted to obliterate the word “slightest,” originally appearing therein, by superimposing pencil marks upon it, and that by such *270 attempted obliteration the court unduly influenced the jury to disregard the ver

1924Also, in Meehan v. Husselgrave, 121 Wash. 568 , 210 Pac. 2 , where the instruction excepted to was identical with that excepted to in this case, the court said: ‘ ‘ The criticism is that the instruction does not limit the recovery for future pain and suffering to such as will be reasonably certain to result from the injury.

1924Also, in Meehan v. Husselgrave, 121 Wash. 568 , 210 Pac. 2 , where the instruction excepted to was identical with that excepted to in this case, the court said: ‘ ‘ The criticism is that the instruction does not limit the recovery for future pain and suffering to such as will be reasonably certain to result from the injury.

1922The appellant requested no different instruction on the subject; and while it is not the same, word for word, with the instruction on this subject approved in the case of Ongaro v. Twohy, 49 Wash. 93, 94 Pac. 916 (which we suggested in Bennett v. Oregon-Wash. R. & Nav.

1922The appellant requested no different instruction on the subject; and while it is not the same, word for word, with the instruction on this subject approved in the case of Ongaro v. Twohy, 49 Wash. 93, 94 Pac. 916 (which we suggested in Bennett v. Oregon-Wash. R. & Nav.