Jury Instruction About a Defendant’s Absence at Trial Was an Abuse of Discretion

The trial court permitted a jury instruction that allowed the jury to not only consider the fact that the physician defendant, who was of Pakistani descent, did not attend the trial, but to also “make whatever inference and conclusions” they chose from that fact. 

The First District Court of Appeals in Ohio found that to be an abuse of discretion, reasoning that the instruction allowed the jury to infer that the physician was absent because of consciousness of guilt and/or because of implicit biases against those of Pakistani descent. Evidence of prior malpractice lawsuits were not admissible because they were not related in any way to the surgery at issue. The defendant’s failure to disclose those prior lawsuits on his applications to medical boards was inadmissible for the same reason, in addition to the fact that they implied a propensity to lie, which is not permitted under Evid.R.404(B).
 

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