indicating if the requirements of Rule 15(c) are met, there can be no statute of limitations objection without proof of prejudice
How later courts described this case
- indicating if the requirements of Rule 15(c) are met, there can be no statute of limitations objection without proof of prejudice
Written by the judges who cited it.
The opinion
Supplemental Opinion on denial of Rehearing
Jack Holt, Jr., Chief Justice. The trial court committed error by permitting broadcasting of a certain portion of the trial proceedings in violation of Canon 3, Code of Judicial Conduct. When an objection was made at the beginning of trial, the judge ruled that he would allow the cameras in, but he stated, “if it becomes distracting to anyone, they should raise an objection at that time and I’ll take care of it at that time.” Subsequently there were no objections. We unanimously held that the appellant acquiesced in the trial court’s ruling by failing to make further objections during the course of the trial and that in this instance, the error was rendered harmless. We further advised the bench and bar that they should be on notice that this court will closely scrutinize any further violations of this rule.
On rehearing some of our members have changed their minds and now think that violation of this rule mandates reversible error, without exception.
The majority is deeply concerned over the trial court’s obvious violation of Canon 3 which reads in pertinent part: “(b) an objection timely made by a party or attorney shall preclude broadcasting ... of the proceedings; and an objection timely made by a witness who has been informed of the right to refuse such exposure, shall preclude broadcasting.”
Although the rule also vests in the trial judge the right to make the final decision as to “whether it would be fitting and proper to permit photographing and recording of the trial proceedings,” 271 Ark. 361 , the trial court is without discretion when timely objection is made. In this instance, the appellant made timely objection.
It is the opinion of the majority that the warning contained in Ford v. State, 276 Ark. 98 , 663 S.W.2d 3 (1982), where we said:
[a] willful disobedience of this Canon would, no doubt, be dealt with in an appropriate manner which could go so far as to cause a retrial of the case or result in other action by this court
does not mandate automatic reversal. Had the record in this case hinted of any prejudice to the appellant by the presence of cameras within the courtroom, reversal would be in order. Absent any prejudice, to reverse and remand as punishment to the trial court would not justify the time and expense for all parties and the court system to relitigate this matter.
We have repeatedly said that a mistrial is a drastic remedy, only to be granted when no other remedy exists. L. L. Cole & Son, Inc. v. Hickman, 282 Ark. 6 , 665 S.W.2d 278 (1984). That is a fair standard to apply to our decision. No longer is error presumed to be prejudicial. A litigant is entitled to a fair trial — not a perfect one. Berna v. State, 282 Ark. 563 , 670 S. W.2d 435 (1984). Here, justice has been done.
In our initial opinion we placed the bench and bar on notice that we would closely scrutinize further violations of this rule. In light of the present attitude of the court, we think it is safe to say this supplemental opinion shall constitute notice that further violation of this rule will not be tolerated to any degree, and that reversal may well be automatic, rather than a matter of scrutiny for possible prejudice.
Rehearing denied.
Purtle, Dudley and Newbern, JJ., would grant. Hays and Hickman, JJ., concur.