Teacher and students.JPGOn the first day of this week’s foray into criminal trial practice, I wrote about what a felony trial has been teaching me about appellate practice. Then a rejoinder form a commenter made me think that blogging during trial was not the greatest idea. Yesterday, the trial resulted in a mistrial. An hour into deliberations, the jurors were split 8-4. The judge sent the jury back to deliberate more, and the split became 7-5. The judge declared a mistrial after they reported that 7-5 was about as far as it was going to change. And since the trend appeared to be moving away from a agreement, the trial court declared them to be a hung jury.

I write, not to report that the jury was hung but about an interesting appellate lesson that I learned on day two of the trial and also what I learned when I spoke to the jurors after the action was over.

The case involved an indictment for child molestation. One of the biggest problems for the State was that the victim recounted the story to different people in inconsistent ways. To the police the complaining witness testified that my client entered the room once where the alleged act was committed. To the mother, she said that he entered the room only once. She made both statements on the same day.

The complaining witness testified that she might have said, at some time in the past, that he entered the room twice. Yet, she insisted on the stand that he came into the room once.

The State’s next witness was the complaining witness’s mother. The prosecutor knew that he had to deal with the mother’s written statement that the daughter told her that he entered the room twice before I made a big deal about it on cross-examination. He tried to offer up possible reasons why she might have written the two-visit version. Each time, it was a leading question. I objected. The objection was sustained. Finally, the witness sensed what she was supposed to try to do.

She blurted out, “I was upset. This whole thing was upsetting. I had to take my daughter to therapy.”

Victim impact evidence is wholly improper for guilt-innocence. I asked the jury to be excused, and I moved for a mistrial. The Court found that the prosecutor had not intentionally elicited the response about therapy but that the questions were such that they invited such a response. He warned counsel not to ask any more such questions. He then denied my motion. I renewed my motion because you must renew a motion for mistrial after the court admonishes counsel or takes any other corrective action. He asked me if I desired a limiting instruction. I said that I did though I believed that “no limiting instruction could undo the harm.” He gave the limiting instruction, and I renewed my motion.

The trial proceeded. I worried about the injection of therapy into the trial. It bolstered the idea that something had happened, and it injected victim impact.

Then I interviewed the jurors afterward. They said that the therapy stuff helped me. They wondered why the State failed to bring in the therapist as a witness. Which, of course, the State could have to rehabilitate with a prior consistent statement after I had impeached with prior inconsistent statements.

So, it turned out that I got to have my cake and eat it too. The State had gone into some forbidden evidentiary stuff. The State was admonished. The jury was given a limiting instruction. The issue was preserved for appeal. The jury promptly ignored the limiting instruction and used the evidence anyway. But they used it in a way that was helpful to me.

Sometrial the best objections are overruled and the best motions are the good ones that are denied. It would have been an interesting appeal. It turns out that the jury granted me a new trial (or hopefully not).

You can learn a great deal about appeals from doing a trial. And I also learned that appeals have taught me much about doing trials. It’s been a fun and tiring week.