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MISTRIAL - MN Bench Book - Trial Procedures & Practices for Judges
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MISTRIAL

From MN Bench Book - Trial Procedures & Practices for Judges

Click on “TRIAL PROCEDURES & PRACTICES FOR JUDGES” above to return to main page


A. THE STANDARD FOR GRANTING A MISTRIAL IS MANIFEST NECESSITY.[1] GENERALLY, THIS MEANS AN ERROR HAS OCCURRED THAT IS SO SIGNIFICANT OR SERIOUS THAT IT CANNOT BE CURED WITH AN INTERVENTION LESS DRASTIC THAN GRANTING THE MISTRIAL.
B. IF YOU ARE CONSIDERING GRANTING A MISTRIAL MOTION, NEVER GRANT IT FROM THE BENCH, TAKE A RECESS AND DISCUSS THE MISTRIAL MOTION WITH ANOTHER JUDGE OR LAW CLERK.
C. A MISTRIAL SHOULD NOT BE GRANTED UNLESS THERE IS A REASONABLE PROBABILITY THAT THE OUTCOME OF THE TRIAL WOULD BE DIFFERENT IF THE EVENT THAT PROMPTED THE MOTION HAD NOT OCCURRED.”[2]
D. THE JUDGE SHOULD CONSIDER ALTERNATIVE INTERVENTIONS TO RESPOND TO AN ACT THAT IS THE POTENTIAL BASIS FOR A MISTRIAL BEFORE GRANTING A MISTRIAL
E. THE ISSUE IN GRANTING A MISTRIAL THAT YOU, AS THE JUDGE, MUST BE CONCERNED ABOUT, IS DOUBLE JEOPARDY. YOU MUST ASK THE QUESTION; IF YOU DECLARE A MISTRIAL IN A CRIMINAL CASE, WILL THE STATE BE BARRED FROM RE-TRYING THE CASE BECAUSE OF DOUBLE JEOPARDY?
F. IF A JUDGE, SUA SPONTE, DECLARES A MISTRIAL OVER THE DEFENDANT OPPOSITION, THE STATE WILL BE BARRED FROM RE-TRIAL(unless it was the behavior of the defendant that percepitated the judge's intent to grant a mistrial)[3]
G. A DEFENDANT IS NOT ENTITLED TO A MISTRIAL BASED ON HIS OWN MISCONDUCT IN THE PRESENCE OF THE JURY [4]


WHEN DOING THE ANALYSIS OF THE POSSIBILITY OF GRANTING A MISTRIAL ASK YOURSELF THE FOLLOWING QUESTIONS AND CONSIDER HOW THE ANSWERS AFFECT THE DOUBLE JEOPARDY ISSUE.

Remember, Jeopardy occurs once the jury is sworn in a jury trial or once the first witness is sworn in a bench trial.

1. What was the behavior that precipitated the motion for a mistrial?

Note: A Judge may observe behavior that leads the judge to consider declaring a mistrial without either attorney requesting one. Declaring a mistrial in this situation may bar a re-trial because of double jeopardy. Make a record of the observed behavior.

2. Which party (state/defendant, attorney, professional witness, lay witness) engaged in the behavior?
3. Which party precipitated the behavior? There can be a dynamic where one party engages in behavior, observed by jury, that was precipitated by other party’s behavior not apparent to jury
4. Was the behavior engaged in after a prior warning not to engage in the behavior?
5. How prejudicial is behavior? Relative prejudice analysis very complex and subjective
6. Does behavior implicate a constitutional right of defendant?
7. Are there less drastic alternatives that can be taken rather than granting a mistrial? This is an important factor on appeal when a mistrial has been granted. If less severe alternatives have been considered by the trial judge and either implemented or rejected and a record made of such considerations, the ultimate granting of a mistrial will usually be upheld.[5]
Less drastic alternatives include:
-Continuance,
-Exclusion of testimony,
-Allowing state to reopen,
-Cautionary or curative instruction, etc


8. Query the defendant in regard to the defendant‘s interest in having the trial concluded in a single proceeding.
9. Can prejudice resulting from behavior be cured with an instruction? This is the standard test in many jurisdictions that judge should apply in determining if mistrial should be granted. The standard for granting a mistrial is manifest-necessity.
10. WHO IS ASKING FOR MISTRIAL?
11. At what stage of trial did mistrial occur?
12. WHO IS OPPOSING THE MISTRIAL?

The following factors should also be considered when presented with a mistrial motion

1. IF A JUDGE, SUA SPONTE, DECLARES A MISTRIAL OVER THE DEFENDANT OPPOSITION, THE STATE WILL BE BARRED FROM RE-TRIAL[6]
2. Denial can result in conviction, appeal and new trial.
3. Denial are easy, however if you think you should grant a mistrial, take a recess and do the analysis with the factors in this memo. Also talk it thru with another judge or law clerk.
4. Do careful “double jeopardy bar to retrial” analysis before granting mistrial,
Retrial may be barred if prosecutor engaged in prejudicial behavior,
Did prosecutor engage in behavior purposefully?
Was behavior engaged in repeatedly?
Does behavior implicate a constitutional right of defendant?
Does defendant want a mistrial?
5. The district court should deny a motion for a mistrial unless there is a reasonable probability that the outcome of the trial would have been different had the event that prompted the motion not occurred. State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006).
6. When an a prejudicial event during the trial has occurred and the court on it’s own motion offers mistrial or the defendant asked for a mistrial, the court should first ask the defendant if he prefers a cautionary or curative instruction rather than a mistrial. The court should inquire directly of the defendant whether he or she wants a curative or cautionary instruction to be given or a mistrial granted. If the defendant requests a cautionary or curative instruction the defendant cannot successfully challenge a subsequent conviction because the court did not grant the mistrial.[7]
7. The giving of a curative or cautionary instruction by the [district] court is a significant factor favoring the denial of a motion for a mistrial.[8] However, appellate courts have recognized the limited effectiveness of a cautionary or curative instruction.[9]
8. Ordinarily, double jeopardy principles do not bar the retrial of a defendant who requested and was granted a mistrial. However, the Supreme Court carved out an exception to this rule holding that a retrial after a defense-requested mistrial is jeopardy-barred when prosecutors engaged in misconduct that "was intended to provoke [or goad] the defendant into moving for a mistrial.[10]
9. Make a clear and complete record of the behavior or incident that precipitated the request for a mistrial.


The "Disregard" Instruction

Written by Judge Gordon Schumacher

Note: Sometimes it will be necessary to explain to the jury, in a fair and neutral way, how it may go about following the court’s instructions. Telling the jury to disregard testimony the jurors have already heard is one of those times. “Disregard” is not tantamount to “erase from memory, “ or “pretend you did not hear.” But, without some help, jurors might well believe that is what the court is asking them to do.

Here is an instruction I have used in an attempt to address the issue:

INSTRUCTION TO JURY TO DISREGARD A CERTAIN STATEMENT OR OCCURRENCE IN A TRIAL

“ If I tell you to disregard an answer or other testimony you have already heard, you must do so. It is no longer a proper part of the case and you cannot fairly consider it as such.

You might wonder how you can disregard something you have already heard. Here is a way to do it.

At the end of the trial, back in the jury room, you will likely tally up, or summarize, all the evidence in the case. From that evidence alone you will decide upon a verdict.

Anything I have told you to disregard will simply not be included in the evidence upon which you base your verdict. It will not be part of your discussions and you will not use it in any way. In that sense, you will have disregarded the item.”

  • Obviously, some evidence might be so inflammatory that a disregard instruction would not be realistic. A mistrial is likely the only option then. Carefully consult the mistrial cases before granting that very drastic relief.




References:

  1. State v. Yeboah, 691 N.W. 2d. 87 Minn. App 2005. A mistrial is appropriate only if there is a high degree of necessity, but the necessity need not be absolute. Long, 562 N.W.2d at 296. Furthermore, the manifest-necessity standard is flexible and seeks to balance fairness to the defendant against governmental and public interests. Id. In assessing the likelihood of manifest necessity, the district court must consider less drastic alternatives in the light of the defendant’s constitutionally protected interest in being subjected to a single trial. Id. The prototypical example of manifest necessity is the deadlocked jury. State v. Soyke, 585 N.W.2d 418 (Minn.App.1998). A trial judge's reasonable belief that the jury will be unable to reach a unanimous verdict is the classic reason for a mistrial. Washington, 434 U.S. at 509, 98 S.Ct. at 832.
  2. State v. Manthey, 711 N.W.2d at 506
  3. State v. Roeschelein, 776 N.W.2d 480 Minn.App.,2009.
  4. Illinois v. Allen, 397 U.S. 337, 349-50, 90 S.Ct. 1057, 1063-64, 25 L.Ed.2d 353 (1970) (concurring opinion): State v. Ming Sen Shiue,326 N.W.2d 648 Minn.,1982.
  5. State v. Roeschelein, 776 N.W.2d 480 Minn.App.,2009.
  6. State v. Roeschelein, 776 N.W.2d 480 Minn.App.,2009.
  7. State v. Jones, A08-1235 (Minn. Ct. App 2009)Trial Court referenced element (felon) that defendant had stipulated to, court gave defendant the option of either mistrial or a curative instruction. Defendant choose curative instruction and claimed court should have sua sponte declared a mistrial. Defendant waive right to have mistrial declared when he choose curative instruction. State v. Olson, 609 NW 2d 293, A pro se defendant who is not given opportunity to object, or to consult with standby counsel, does not impliedly consent to a prosecutor's request for a mistrial merely by failing to object.
  8. State v. Caldwell, c, 590 (Minn. 1982).
  9. State v. Reardon, 73 N.W. 2d 192 (1955) …that where "the impact of the prejudicial remark may be such as to impart to the minds of the jury substantial prejudicial evidence not properly a part of the case, it is taking too much for granted to say its effect can be removed by an instruction from the court. * * * 'The naive assumption that prejudicial effects can be overcome by instructions to the jury, * * * all practicing lawyers know to be unmitigated fiction.' " .
  10. Oregon v. Kennedy, 456 U.S. 667 (1982;, State v. Fuller, 374 N.W.2d 722