Certain things that happen during trial may be so improper and prejudicial that they deprive a party of the right to a fair trial. That’s when counsel may move for a mistrial. But just because you can doesn’t mean you should. Like everything else at trial, whether to move for mistrial is a tactical decision.
First off, it’s generally tactically unwise to move for mistrial when the prejudicial error is committed by the judge, so we’re mainly taking about using them as a remedy in jury trials.
To get a mistrial granted, the incident will have to be more than just prejudicial; it must be irreparable, i.e., the harm is so great that even a well-crafted admonition wouldn’t effectively remedy the unfair impression made on the jury. People v Romero (1977) 68 CA3d 543.
Various statutes require the trial judge to declare a mistrial for specified irregularities in the proceedings, including calling the judge presiding at the trial or a juror in the case as a witness, over objection. Evid C §§703(c), 704(c). See also CCP §616. There are also nonstatutory grounds for granting a mistrial, such as the illness or death of the judge, a party, or counsel.
But even when grounds for mistrial exist, consider these tactical questions before you make your move:
- How much real harm has been caused? If the prejudicial effect of an incident or a procedural irregularity clearly can’t be overcome by an admonition to the jury or presentation of evidence, the aggrieved party can only be protected by moving for a mistrial. But if the extent of harm is speculative, weigh other factors before moving for a mistrial.
- How would a delay affect the client’s and the opponent’s cases? If the jury calendar is congested, the first available date for a retrial may be many months away. By that time, essential witnesses may be unavailable because of, e.g., illness, death, moving from the area, changing allegiance, or losing their powers of recollection. The climate of public opinion may also change.
- How much expense would a delay entail? A retrial inevitably means additional costs. Rather than incurring those costs, the client may prefer to gamble on the case as it stands.
- How will the defendant spend the interim? Moving for a mistrial may not be wise in a criminal case if the defendant may spend the interim in jail rather than out on bail.
- How will the granting of a mistrial affect the defendant’s ability to raise the defense of prior jeopardy to preclude a retrial? In a criminal case, the granting of a mistrial will enable the defendant to raise the defense of prior jeopardy to preclude a retrial if, after the jury has been sworn, the judge declares a mistrial without the defendant’s consent and a mistrial is not strictly necessary. See Pen C §1141; People v Upshaw (1974) 13 C3d 29.
Sometimes attorneys move for a mistrial for tactical reasons, even though they expect the motion to be denied. For example, if the irreparable nature of a prejudicial incident is unclear, the judge will likely deny the motion if trial has already progressed for several days. The judge may reason that the investment of time and money won’t necessarily be wasted if the motion is denied, because the party moving for the mistrial may still win, in which case the question will be moot. But if the verdict goes the other way, then the judge will reconsider the matter on a motion for new trial. In such a circumstance, counsel may move for a mistrial primarily to improve the chances of securing a new trial if the jurors return a verdict adverse to the client.
For everything you need to know about moving for a mistrial, turn to CEB’s California Trial Objections, chapter 56. For techniques and approaches for successfully presenting various motions in CA state courts, including for mistrial, check out CEB’s program Motions During & After Trial.
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