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What Is a Mistrial?

January 1, 2018

Fred Thiagarajah

In the summer of this year, Bill Cosby was charged and tried for sexual assault, but he was not convicted.  He wasn’t exonerated either.  Instead, his case resulted in a mistrial.  What is a mistrial?  A mistrial is one of two things – either a trial that has become invalid due to some legal error in the proceedings or a trial where the jury cannot reach an unanimous verdict.

In the first setting, there are cases where the court or the DA’s office has made a mistake that greatly prejudices the outcome of a case, and the defense can request that the court declare a mistrial.

In the second setting, the jury cannot reach an unanimous verdict on one, some or all of the charges.  A verdict – whether it’s a verdict of guilty or not guilty – requires all jurors to agree; and if the jurors can’t all agree, this is known as a hung jury.  When a jury informs the court that it cannot agree on a verdict, the court will usually ask the jury to reconsider.  Courts do not like hung juries. Sometimes, the court will ask the jury to reconsider more than once.  Sometimes the court will ask the jury if further instruction on the law or further argument on the facts will help their deliberations.  A court is allowed to ask what the split is – such as 11 to 1 or 7 to 5, but the court isn’t allowed to ask which way the split is leaning.  So the judge may know that 10 jurors agree and 2 jurors disagree, but the court won’t know whether the 10 jurors are voting for conviction or acquittal. However, after the mistrial is declared, then court will determine the nature of split.  The split and nature is important in future proceedings because it greatly impacts negotiations.

Any split favors the defense.  11-1 against a defendant means it was a bad case for the defense to take to trial and the defendant got lucky.  Now the defendant should take a deal, assuming there is one available.  If the split 9-3 or better, than the defendant knows that if the prosecution couldn’t convince 3 or more people the first time around, it’s unlikely they can convince 12 people the second time around – unless there’s additional evidence that will be presented in the second case that wasn’t available for the first.

When there is a hung jury, it’s an automatic mistrial.  The defense doesn’t have to request it.  However, when there is a legal error, then the defense must make a tactical decision whether to request a mistrial.  It depends on whether the retrial of the case will be better the second time around.  For example, in the middle of a jury trial I had involving felony sex charges, I discovered that the prosecutor hadn’t turned over recorded interviews that the victim had made prior to the trial.  The judge ultimately ruled that the tapes would not come in but I had the opportunity to request a mistrial because that was a big piece of evidence that wasn’t turned over to me.  However, I realized that the evidence would hurt my client so we got lucky that it wasn’t turned over.  If I asked for a mistrial and the case started all over again, then this evidence may come in during the second trial.  So I chose not to ask for a mistrial,  Of course, by not arguing for a mistrial at that point, then we give up our right to claim a mistrial later.


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