Preserves.JPGSo, I just got finished reading a transcript on a case I am appealing. Halfway through the trial, a witness for the State said something highly improper. Counsel moved for a mistrial. These moments in the reading of a transcript are a little like watching a really close college football game, because I am pulling for some magic words that preserved the record for appeal. So, I flip the page, and the lawyer explains why the testimony was improper and why a mistrial is necessary. Good stuff.

Cue the drama and suspense music. The judge dismisses the jury. As soon as the jury is out of the room, there’s a little more argument. The Court tells the State and the witness not to say it anymore. The Court makes the prosecutor warn all the other witnesses not to say it. The objection is sustained.

Then, the jury is asked back in, and the trial continues. No ruling on the motion. No renewal after corrective action. Nothing but a good appeal down the tubes. Mistrial issuesin a transcript are often the litigation equivalent of a Gilligan’s Island rescue. They almost preserve the issue for appeal, but they don’t quite make it.

So, since my theme this week is preserving the record for appeal, let me say a few things about managing mistrial motions in Georgia.

Here are three things to remember, and they are really easy. Again, as I mentioned before, you don’t need to be mean to do this. You can be very nice in fact:

  1. Move for a mistrial and state exactly why the testimony is objectionable and why no lesser remedy that stopping the trial will work. Moving for a mistrial is like asking the judge to detonate a nuclear bomb on the trial. The trial ends. The State is out the money it spent trying the case to this point. Usually, you will be arguing something along the lines that the testimony or comment was so prejudicial that there is no way that the jury can make a fair decision from this point forward.
  2. Hold your ground and seek a ruling. You might think that a ruling is implied if the Court starts doing something else. But take a second and get her to state the obvious. Just ask, “your honor, did you deny my mistrial motion. Just for the record.” Get a ruling.
  3. Renew, renew, renew. If the Court scolds the prosecutor or the witness and says “don’t ever do this again.” If the Court gives a limtiting instruction, or even worse asks you to draft the limiting instruction, then say “judge, I’ll help you draft it, but I don’t think anything will work at this point.” After the corrective action is taken, renew your motion for mistrial. Check out Matiatos v. State or Northern v. State for some guidelines.

But what if you are the appellate attorney, and it wasn’t preserved?

You could argue that it was plain error. But that’s a tough hill to climb. Check out State v. Gordon for what plain error is. You are then left with ineffective assistance of counsel, which has worked for me in at least one other case.

But life will really be easier if it doesn’t come to that. Just state your motion and renew, renew, renew to give me some stuff to work with later.