The term “mistrial” refers to a situation where jurors have been discharged without having reached a verdict, usually (but not exclusively) because of some event which irreversibly prejudiced the ability of one of the parties to obtain a fair trial or because the jury was deadlocked.34 The decision whether or not to declare a mistrial is within the discretion of the trial court.35 A trial judge should grant a mistrial only where there is a manifest necessity or the ends of public justice would be otherwise defeated. The remedy of a mistrial is mandated only when there are no meaningful and practical alternative to that remedy.36
A mistrial may be called, for example, where jurors in a criminal case learned that the defendant had previously been tried for the same crime (regardless of whether the jurors learned of the outcome)37 or where there has been unlawful intimidation of a juror.38 Illness of a party during trial may also warrant a mistrial, depending upon the duration of the illness.39 The fact that a witness testified falsely and such falsity was shown at trial will not require a mistrial, as the witness’s credibility can be weighed and determined by the jury.40
The party moving for a mistrial need not show actual prejudice, but only that prejudice is manifestly conceivable.41 Such a motion should not be granted if the risk of prejudice can be cured by a cautionary instruction.42 A motion for a mistrial should be made at the time of the claimed impropriety to permit the trial judge to take action, if possible, to avoid any prejudice.43
When judges declare a mistrial in a criminal case in the absence of a request by the defendant, a higher standard applies because of the recognition of a criminal defendant’s interest in having the trial completed by the tribunal originally selected. In such cases, there must be a “manifest necessity” for the mistrial. In other words, the judge must have had no meaningful or practical alternative. The court must explain on the record why there is no meaningful or practical alternative for a mistrial and that it scrupulously considered available alternatives and found them all wanting other than a termination of the proceedings.44
Where a mistrial is sought because of the outburst of a witness or other party during the trial in the presence of the jury, a court should consider (i) the nature, persistency and frequency of the outburst, (ii) whether the outburst created a likelihood that the jury would be misled or prejudiced, and (iii) the closeness of the case. The judge should instruct the jury to disregard the outburst to cure possible prejudice.45
34. See Sudler v. State, 611 A.2d 945, 948 n.5 (Del. 1992). See also Gallo v. Buccini/Polin Group, C.A. No. 04C-11-017, slip op. at 5 n. 4, Brady (Del. Super. Mar. 28, 2008) (a mistrial is a “trial that the judge brings to an end, without a determination on the merits, because of a procedural error or serious misconduct occurring during the proceedings”) (quoting Black’s Law Dictionary 1023 (8th ed. 2004)); Dickens v. Costello, C.A. No. 97C-06-063RRC, slip op. at 2 n. 1 (Del. Super. July 20, 2004), app. dismissed mem., 971 A.2d 1127 (Del. 2004).
35. Ruffin v. State, 131 A.3d 295, 305 (Del. 2015); Revel v. State, 956 A.2d 23, 27 (Del. 2008); Eskin v. Cardin, 842 A,2d 1222, 1233 (Del. 2004); Bell Sports, Inc. v Yarusso, 759 A.2d 582, 595 (Del. 2002); DeJesus v. State, 655 A.2d 1180, 1207 (Del. 1995); Lewis v. State, 626 A.2d 1350, 1357 (Del. 1993); Koutoufaris v. Dick, 604 A.2d 390, 400 (Del. 1992); Lewis v. State, 626 A.2d 1350, 1357 (Del. 1993); Grayson v. State, 524 A.2d 1, 2 (Del. 1987); McCloskey v. State, 457 A.2d 332, 337 (Del. 1983); Young v. State, 431 A.2d 1252, 1255 (Del. 1980), cert. denied, 454 U.S. 972 (1981); Thompson v. State, 399 A.2d 194, 199 (Del. 1979).
36. Bohan v. State, 990 A.2d 421, 423 (Del. 2010); Purnell v. State, 977 A.2d 1102,1108-09 (Del. 2009); Banther v. State, 977 A.2d 870, 890 (Del. 2009); Burns v. State, 968 A.2d 1012, 1018 (Del. 2009); Michaels v. State, 970 A.2d 223, 229 (Del. 2009); Revel v. State, 956 A.2d 23, 27 (Del. 2008); Justice v. State, 947 A.2d 1097, 1100 (Del. 2008); Brown v. State, 897 A.2d 748, 752 (Del. 2006).
37. Bailey v. State, 521 A.2d 1069, 1076 (Del. 1987).
38. McCloskey v. State, 457 A.2d 332, 338-39 (Del. 1983).
39. Shaw v. State, 282 A.2d 608, 610 (Del. 1971).
40. Johnson v. State, 587 A.2d 444, 447 (Del. 1991).
41. McCloskey v. State, 457 A.2d 332, 337 (Del. 1983).
42. Starling v. State, 882 A.2d 747, 755 (Del. 2005), cert. denied, 546 A.2d 1215 (2006); Hendricks v. State, 871 A.2d 1118, 1122 (Del. 2005); Dunn v. Riley, 864 A.2d 905, 909 (Del. 2004); Ayers v. State, 802 A.2d 278, 284 (Del. 2002); Shields v. State, 374 A.2d 816, 821 (Del. 1977), cert. denied, 434 U.S. 893 (1977). See also Koutoufaris v. Dick, 604 A.2d 390, 400 (Del. 1992).
43. Thornton v. State, 405 A.2d 126, 127 (Del. 1979).
44. Swanson v. State, 956 A.2d 1242, 1244 (Del. 2008); Hope v. State, 570 A.2d 1185, 1189 (Del. 1990); Fanning v. Superior Court of New Castle County, 320 A.2d 343, 345 (Del. 1974); Bailey v. State, 521 A.2d 1069, 1075-77 (Del. 1987).
45. Copper v. State, 85 A.3d 689, 694 (Del. 2014); Taylor v. State, 690 A.2d 933 (Del. 1997).
© 2016 David L. Finger