You may have heard in the media that a criminal defense attorney has made a motion for a mistrial or a judge has granted a mistrial. As a part of a new Minnesota judge’s training there has been a mandatory mock trial exercise before a jury of law students and 2 veteran attorneys which is intended to teach the new judge to order gradually more serious consequences for lawyer misbehavior during a trial before ordering a mistrial. It starts with the attorneys interrupting each other during questioning of a witness, then moves on to calling each other nasty names, and finally by horrendous conduct such as speaking directly to the jury while a witness testifies. Once the violations of court decorum become cumulative and a fair trial is impossible, the judge can declare a mistrial. The jury is excused, the trial ends, and the case is retried from the beginning with a new jury.

Under Minnesota Rules of Criminal Procedure a motion for a mistrial occurs during the trial, while a Defendant’s motion for a new trial must be filed within 15 days after a guilty verdict or on the judge’s initiative? The State cannot file a motion for new trial after a not guilty verdict. The reasons for a new trial are the following:

1) If required in the interest of justice;

2) Irregularity in the proceedings deprived the defendant of a fair trial;

3) Misconduct of the jury or the prosecution;

4) Accident or surprise that could not have been prevented by ordinary prudence;

5) Material evidence, newly discovered, which with reasonable diligence could not have been found and produced at trial;

6) Errors of law occurring at the trial and objected to at the time; or

7) The verdict or finding of guilty is not justified by the evidence, or is contrary to law.

A criminal defendant cannot by their own wrongful conduct in the courtroom create the grounds for a mistrial. As an example, a defendant whose trial is going badly cannot stand up and shout at the jury “you’re not hearing all the evidence!” and expect a mistrial.

In the past 10 years there have been many mistrials in criminal cases in the U.S. and Britain due to jury misconduct violating a judge’s instructions and warnings. These include jurors doing the following while the trial is ongoing: discussing the case on Facebook; contacting lawyers or witnesses in the case; and blogging about their experiences. Cases costing the parties millions of dollars in trial preparation and trial work have resulted in thrown-out verdicts and retrials due to misconduct by attorneys, parties, jurors, and judges.

It is not unfair or immoral for a criminal defense attorney to make a motion for a mistrial, directed verdict for acquittal, or new trial. In fact, failure to do so may violate the defendant’s right to competent counsel. The Minnesota Supreme Court has ruled that the court must consider the following as to mistrials prior to deliberations:

1) The nature and source of the prejudicial matter;

2) The number of jurors exposed to the matter;

3) The weight of other evidence properly before the jury; and

4) The likelihood that steps could be taken to successfully reduce the prejudice.

We all have the same constitutional rights to a fair trial and competent counsel,

therefore we, as citizens, should not be critical of defense attorneys that are representing their clients as required by professional ethical rules.

It’s in your court.

Submitted by Judge Steve Halsey, Wright County District Court, chambered in Buffalo. Judge Halsey is the host of “The District Court Show” on local cable TV public access channels throughout the Tenth Judicial District. Excerpts can be viewed at Go to Community and click “The District Court Show.”


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