What Is a Mistrial?

A mistrial occurs when a criminal trial ends before the jury reaches a verdict. Mistrials are a last resort and are generally granted only when continuing would prevent a fair trial or be futile. Common grounds include juror misconduct, improper jury selection, a deadlocked jury, the death of a juror or attorney, or a serious error that jury instructions cannot cure.

For legal help in a criminal law proceeding, contact a local criminal law attorney.

What Is a Mistrial?

Mistrials are trials terminated and declared void before jury members return a verdict, or before the judge renders a decision in a non-jury trial.

Mistrials can occur for many reasons, including:

• Death of a juror or attorney
• An impropriety in the jury selection process discovered during the trial
• A fundamental error unfair to the defendant that cannot be cured by appropriate instructions to the jury
• Juror misconduct, such as having contacts with one of the parties, considering evidence not presented in the trial, conducting an independent investigation of the matter
• The jury’s inability to reach a verdict because it is hopelessly deadlocked

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Who Can Request a Mistrial?

Either side may move for a mistrial. The judge will either grant the motion and declare a mistrial, or deny it and the trial will continue.

To decide whether a trial should continue, the court must find that continuing at this point would waste time and expense. If the situation makes it impossible for the defendant to receive a fair and impartial trial, the court may grant a mistrial.

But this should be done, as the court says, as an extraordinary remedy used with great care and only in cases of absolute necessity.

What Happens After a Mistrial Is Declared?

After a mistrial is declared, several outcomes are possible. The Fifth Amendment’s Double Jeopardy Clause generally bars a second prosecution for the same offense after an acquittal or conviction, subject to exceptions, including some mistrials.

However, the Double Jeopardy Clause is tricky in mistrial cases, as a defendant may be tried again if the defendant requests or consents to a mistrial.

If the mistrial occurs over the defendant’s objection and without the defendant’s consent, a retrial may be barred. If the mistrial results from judicial or prosecutorial misconduct, retrial is prohibited.

Most of these details reflect public policy. If the defense seeks a retrial for anything other than prosecutorial or judicial misconduct, the state should get another chance to prosecute the accused.

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Courts grant this extraordinary remedy only occasionally. Knowing when and how to seek a mistrial requires an experienced criminal defense attorney.