Under Georgia law, a trial judge may grant a new trial when the verdict is “contrary to evidence and the principles of justice and equity,” OCGA § 5-5-20, or “decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding,” OCGA § 5-5-21. These are known as “the general grounds.”
It’s a phrase that, in this context, seems to be unique to Georgia. I searched Lexis for cases using “the general grounds” in the same paragraph as “new trial.” I got 9,373 results, 9,268 of which were Georgia state court cases. Federal courts and other jurisdictions grant new trials for similar reasons, but don’t use the same shorthand. It’s in wide enough use here that it often appears with no context and with no reference to the code sections. See, e.g., Jackson Nat’l Life Ins. Co. v. Snead, 231 Ga. App. 406, 406 (1998) (“On November 29, 1995, the trial court granted Snead’s motion for a new trial on the general grounds, and a second trial commenced in June 1996.”).
In that sense, the phrase is reminiscent of “the usual stipulations,” often heard in depositions. Lawyers have heard it so often that they may be ashamed to admit they don’t know what it means. See United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 473 n.8 (E.D. Cal. 1994) (“Everyone purports to know without asking the content of the ‘usual stipulations’ until a dispute arises….”). But unlike “the usual stipulations,” “the general grounds” has definite meaning under Georgia law.
In deciding a motion on the general grounds, the trial judge acts as a “thirteenth juror.” White v. State, 293 Ga. 523, 524 (2013) (citation and quotation marks omitted). The judge must consider fact issues ordinarily within the province of jurors, like “any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence.” Id. The judge’s discretion is “broad” and “substantial,” but “not boundless.” Id. at 524-25. It “should be exercised with caution [and] invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id.
Some decisions put the standard in terms of the judge’s “approval” of the verdict. “Before the verdict of the jury becomes final it should, where the defendant requires it by a motion for a new trial, receive the approval of the mind and conscience of one more man – the trial judge…. The finding of the jury is not binding on the judge. It may be and for the most part should be highly persuasive upon him; but he is authorized to set it aside, and indeed is under the duty of doing so if he does not approve it as a finding of fact.” Walters v. State, 6 Ga. App. 565, 567 (1909). In Walters, the trial court’s order denying a new trial stated, “The issue in this case being one of fact, the jury having passed upon, the court does not feel authorized to interfere with it.” Id. at 566. This was error. See also Copeland v. State, 327 Ga. App. 520, 525 (2014) (“Our sovereign, the law, has in effect said to the trial judge: We charge you to let no verdict stand unless your conscience approves it, although there may be some slight evidence to support it.”) (citation and quotation marks omitted).
The description of the trial judge as a “thirteenth juror” is somewhat misleading. Jurors should consult other jurors’ opinions, but ultimately they must each decide the case independently, and they are not required to give other jurors’ beliefs any particular weight. See generally Romine v. State, 256 Ga. 521 (1986); ABA Criminal Justice Standard 15-5.4. A trial judge deciding a new trial motion on the general grounds does not have such unfettered discretion. See also United States v. Ferguson, 246 F.3d 129, 139 (2d Cir. 2001) (Walker, J., dissenting) (“the ‘thirteenth juror’ analogy….fails to convey the considerable circumspection that this court has required”).
Only trial judges can grant new trials on the general grounds. Appellate courts do not have the same authority. See Slaton v. State, 296 Ga. 122, 125 (2014). But that does not mean that a trial judge’s decision on the general grounds is unreviewable.
If a party moves for new trial on the general grounds, the trial court must affirmatively exercise its discretion in considering the motion. See Hartley v. State, 299 Ga. App. 534, 534 (2009) (vacating denial of new trial motion because “the trial court failed to exercise its discretion and decide [the] claims based upon the general grounds”). Denials of new trial motions are often vacated because the trial court addresses certain specific grounds without addressing the general grounds, even though a party has raised the general grounds. In particular, trial judges in criminal cases confuse the general grounds with the insufficient evidence standard under Jackson v. Virginia, 443 U.S. 307 (1979).
For example, in Gomillion v. State, S14A1872, 2015 Ga. LEXIS 150 (Mar. 2, 2015), the Georgia Supreme Court vacated the denial of a new trial motion, where the denying order stated the evidence “was sufficient for a rational trier of fact to find [appellant] guilty beyond a reasonable doubt.” Id. at *7. That’s the standard of Jackson v. Virginia – a non-discretionary standard. Unlike the general grounds, the Jackson v. Virginia standard does not require judges to weigh the evidence; actually, it forbids it. Because there was no indication that the trial judge had exercised discretion in Gomillion, the Court remanded for the trial court to consider the general grounds.
Ultimately what the general grounds do is prevent a judge from assigning all blame for an unpopular verdict to the jury. Unless double jeopardy attaches, a judge can’t say, “The jury got this one wrong, but my hands are tied.”