Land Mine #6: Mistrial

Land Mine #6: Mistrial

A party who objects, receives a ruling sustaining the objection, and receives a corrective instruction should still move for a mistrial if he or she believes the instruction has not remedied the problem.

A party must move promptly for a mistrial, although not necessarily in the next breath following the comment. “The trial court has the power to wait until the jury returns its verdict before ruling on a motion for mistrial.” Further, a motion for mistrial is not necessarily waived by moving counsel also asking that the court reserve ruling until after the jury returns a verdict. Empowering a trial court to reserve ruling on a motion for mistrial conserves judicial resources and prevents a wrongdoer from profiting from intentional misconduct.

There is no need to make a motion for mistrial if the original objection is overruled. That alone will preserve the issue for review.

If the court grants your motion for mistrial before the jury is discharged, any verdict returned is void. However, when the judge reserves ruling on a mistrial motion until after the trial, or the motion is not made until after the discharge of the jury, then the motion must be considered a motion for new trial.

Note that the timeliness of a motion for mistrial is extremely important. Some litigants will make a tactical decision to take their chances with the jury, and if they lose, they will simply move for a new trial. But the appellate courts are wary of such strategies and have held that by failing to move for a mistrial during trial, the litigant has failed to preserve the error for further review.

Next week we will focus on Land Mine #7: Misconduct of Counsel.