Dave's Crim. Case Law Rev. (9/20/16)

Dave’s criminal case law review Sept. 20, 2016

no. 04

With that segue, let’s get into the law of mistrial.

If you’re reading this, you know what a mistrial is and that a court rarely declares one.

I plan to show what you should argue based on how the appellate courts will review the decision to declare a mistrial.

The Mistrial The Court of Criminal Appeals issued thirteen opinions last week. None had any real meaty issues. Such is the life of an error correcting court. They can’t all be Miranda.

However, I didn’t want to leave y’all review-less so I present this short refresher on the law of mistrial inspired by one of those cases, State of Tennessee v. Kenneth Jones.

(If you don’t care about the facts of the case, skip to “The Law” section which should be about to the right.)

The facts in State v. Jones are unimportant except the following: The State indicted and tried Kenneth Jones for the crime of aggravated robbery. At trial, one of the State’s witnesses alluded to possible other crimes Mr. Jones may have committed for which he wasn’t on trial. He asked for a mistrial based on this statement.

The court denied this request and instructed the jury to disregard any reference to other crimes.

The jury convicted Mr. Jones of the charged crime. He appealed.

The appellate court affirmed the trial court’s decision to not declare a mistrial because (1) the State did not solicit the statement about other crimes, (2) the trial court gave curative instructions, and (3) the evidence against the defendant “was strong, including Defendant’s possession of the recently stolen items and a positive identification by the victim.”

There. All caught up.

The Law An appellate court reviews a court’s decision on a mistrial under the “abuse of discretion” standard, the lowest standard of review. This means an appellate court will not reverse unless the court made an “illogical” decision or applied an “incorrect legal standard.” State v. Smith, 492 S.W.3d 224, 243 (Tenn. 2016).

Consequently, your only real chance for relief remains at the trial court level. So what do you argue?

In deciding on a mistrial, the judge must answer the following: Will the prejudicial event, e.g. improper testimony, prevent an impartial verdict? Or, would a miscarriage of justice happen if a mistrial were not declared?

(As criminal defense lawyers, the answer is always “yes!”) State v. Bell, 480 S.W.3d 486, 504 (Tenn. 2015). In other words, the court must declare a mistrial if there is no feasible alternative to halting the proceedings.

When an appellate court reviews that decision, it looks to (1) whether the prejudicial testimony was solicited by the non-aggrieved party, (2) whether the trial court gave curative instructions to the jury,

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Dave’s criminal case law review Sept. 20, 2016

no. 04

and (3) whether the State had strong or weak proof against the Defendant. Id. Knowing what the appellate courts will be reviewing, we should argue those points to the trial court.

gentleman, please disregard the testimony that Mr. Defendant was in jail for ten years for the sale of cocaine. It can have no bearing on your decision on whether he sold cocaine.” Thanks, judge.)

Some (or most?) would forego the curative instruction for tactical reasons. Just know the appellate court will penalize you for it.

Argument One: The State elicited the testimony. State v.

Bell, 480 S.W.3d 486, 504 (Tenn. 2015).

Obviously this doesn’t work if it didn’t.

However, I think there’s a difference between seasoned witnesses like law enforcement officials and lay witnesses. And some seasoned witnesses know how to insert testimony without prompting from the State.

(A detective once testified that—and I paraphrase— “we found the handgun and some other things we can’t talk about.” A mistrial was not granted.)

My point is that, even if the testimony was unsolicited, you could still argue that he or she knew better.

Argument Three: Finally, you should argue the weakness of the State’s case. The weaker the case, the more willing the court should be to grant a mistrial. Or so the argument goes.

The point is that you should itemize the weakness of the State’s case and marshal those points to argue that the trial cannot proceed after the prejudicial information without violating your client’s right to a fair trial.

Conclusion: Mistrials are the unicorns of criminal procedure. However, arguing in the format of the appellate review at least makes the trial court respond to those arguments. And that can’t be a bad thing.

D.A.S.

Argument Two: You should also argue a curative instruction is not enough. As part of its analysis, an appellate court will look to whether the court gave a curative instruction.

Id. You can argue that the curative instruction will not adequately protect your client’s right to a fair trial. Bring up the impossibility of un-ringing bells, etc.

As trial lawyers know, a curative instruction is double-edged. It tells the jury to disregard the information while focusing its attention on the information. (“Ladies and

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