12.17Mistrial and Double Jeopardy Implications of Mistrial Declaration¹

A.Determination and Permissibility of Retrial

“A motion for a mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs the defendant’s ability to get a fair trial.” People v Beesley, 337 Mich App 50, 54 (2021) (quotation marks and citation omitted). “The proper analysis for a motion for mistrial depends principally, if not exclusively, on whether a defendant has been prejudiced by an irregularity or error.” Id. at 55. “A mistrial should be granted only where the error complained of is so egregious that the prejudicial effect can be removed in no other way.” People v Gonzales, 193 Mich App 263, 266 (1992). “Before ordering a mistrial, the court must, on the record, give each defendant and the prosecutor an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives.” MCR 6.417.

A motion for mistrial raises the issue of double jeopardy, because the federal and state constitutions prohibit twice placing an individual in jeopardy of life or limb for the same offense. US Const, Am V; Const 1963, art 1, § 15. As summarized in People v Ackah-Essien, 311 Mich App 13, 32 (2015):

“Generally, jeopardy attaches in a jury trial once the jury is empaneled and sworn.^[2] [People v Mehall, 454 Mich 1, 4 (1997)]. Once jeopardy attaches, the defendant has a constitutional right to have his or her case completed and decided by that tribunal. [People v Henry, 248 Mich App 313, 318 (2001)]. ‘If the trial is concluded prematurely, a retrial for that offense is prohibited unless the defendant consented to the interruption or a mistrial was declared because of a manifest necessity.’ [Mehall, 454 Mich at 4]. A jury’s inability to reach a unanimous verdict is one circumstance that constitutes a manifest necessity permitting retrial. Id. Indeed, a ‘hung jury’ is the ‘prototypical example’ of a situation when the ‘manifest necessity’ standard is satisfied with respect to granting a mistrial and permitting retrial. [People v Lett, 466 Mich 206, 217 (2002), aff’d sub nom Renico v Lett, 559 US 766 (2010)] (quotation marks omitted), quoting [Oregon v Kennedy, 456 US 667, 672 (1982)]. ‘Necessarily intertwined with the constitutional [double jeopardy] issue . . . is the threshold issue whether the trial court properly declared a mistrial.’ [Lett, 466 Mich at 213].”

“If the trial is concluded prematurely, a retrial for that offense is prohibited unless the defendant consented to the interruption or a mistrial was declared because of a manifest necessity.” People v Beck, ___ Mich ___, ___ (2022) (quotation marks and citation omitted). “It is the prosecutor’s ‘heavy’ burden to show manifest necessity.” Id. at ___. “To declare a mistrial, the trial court must find the facts justifying the mistrial. When such procedures are not followed, there is no manifest necessity for declaring a mistrial.” Id. at ___ . In Beck, “during deliberations, a juror informed the judge that another juror may have done outside research on the case. Id. at ___. “The trial court did poll the jury by written note, go on the record with counsel to discuss the matter, and briefly consider each side’s proposed alternatives to a mistrial. However, the court’s consideration of the matter was too abrupt, and its conclusions were not supported by sufficient evidence.” Id. at ___ (holding that “although the trial court may have believed it was acting with an abundance of caution, the standard for declaring a mistrial was not satisfied”). “The nature of the juror’s outside research was unclear to the trial court and yet, instead of further probing what the juror researched and whether it would affect the proceedings, the trial court summarily declared a mistrial.” Id. at ___. “Further, despite learning through polling the jurors that only one other juror had knowledge of the outside research, the trial court concluded that the entire jury was tainted.” Id. at ___. Finally, “the trial court’s consideration of less drastic alternatives failed to sufficiently determine the extent of any jury taint and whether it was limited to jurors who could be excused and replaced. Due to these failures, the trial court did not adequately find a justification for mistrial that outweighed the defendant’s interest in continuing the trial.” Id. at ___.

A mistrial granted on the defendant’s motion or with his or her consent waives double jeopardy protections unless the motion or consent is prompted by prosecutorial conduct intended to goad the defendant into the mistrial request. Kennedy, 456 US at 669, 675-676, 679 (where the prosecutor did not intend to provoke a mistrial when he asked a prosecution witness if the reason the witness had not done business with the defendant was because the defendant was “‘a crook[,]’” the double jeopardy clause did not bar retrial after the defendant successfully moved for a mistrial).

B.Retrial Following Mistrial Due to Hung Jury

“The decision to declare a mistrial after a finding of manifest necessity because of a deadlocked jury is entrusted to the ‘“sound discretion of the trial court.”’” Ackah-Essien, 311 Mich App at 31 (2015), quoting Lett, 466 Mich at 216-217 (2002) (additional citation omitted). “[A] trial court, before declaring a mistrial because of a hung jury, [is not required] to consider any particular means of breaking the impasse[ or] to consider giving the jury new options for a verdict.” Blueford v Arkansas, 566 US 599, 609 (2012), citing Lett, 559 US at 773-774. Blueford was decided before MCR 6.417 was adopted; it is unclear whether the court rule provides heightened protections for the defendant in this regard.

Retrial after a mistrial due to a deadlocked jury does not violate the Double Jeopardy Clause. Lett, 559 US at 773. “A ‘mistrial premised upon the trial judge’s belief that the jury is unable to reach a verdict [has been] long considered the classic basis for a proper mistrial.’” Id. at 774, quoting Arizona v Washington, 434 US 497, 509 (1978). In Renico, 559 US at 775, quoting Washington, 434 US at 517, the United States Supreme Court reiterated its holding “that a trial judge declaring a mistrial is not required to make explicit findings of “‘“manifest necessity”’” nor to ‘articulate on the record all the factors which informed the deliberate exercise of his [or her] discretion.’” The United States Supreme Court has “never required a trial judge, before declaring a mistrial based on jury deadlock, to force the jury to deliberate for a minimum period of time, to question the jurors individually, to consult with (or obtain the consent of) either the prosecutor or defense counsel, to issue a supplemental jury instruction, or to consider any other means of breaking the impasse.” Renico, 559 US at 775. In fact, the United States Supreme Court has never “‘overturned a trial court’s declaration of a mistrial after a jury was unable to reach a verdict on the ground that the “manifest necessity” standard had not been met.’” Id., quoting Winston v Moore, 452 US 944, 947 (1981).

Where, “[b]efore the jury concluded deliberations . . . , [the jury foreperson] reported that [the jury] was unanimous against guilt on charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide[,]” and where the jury then continued deliberations before a mistrial was declared because the jury remained hopelessly deadlocked, the Double Jeopardy Clause did not bar the defendant’s retrial on all of the charged offenses. Blueford, 566 US at 601, 610. Although the jury was instructed to consider the offenses in order, from greater to lesser, and to proceed to each lesser offense only after agreeing that the defendant was not guilty of the greater offenses, “the foreperson’s announcement of the jury‘s unanimous votes on capital and first-degree murder [did not] represent[] . . . a resolution of some or all of the elements of those offenses in [the defendant’s] favor.” Id. at 606. “The foreperson’s report was not a final resolution of anything[,] . . . [and t]he jurors in fact went back to the jury room to deliberate further, even after the foreperson had delivered her report[;]” because it was possible for the “jury to revisit the offenses of capital and first-degree murder, notwithstanding its earlier votes[,] . . . the foreperson’s report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on those offenses[.]” Id. at 606, 608.

C.Examples of Other Common Bases for Mistrial Motions

Defendant’s incompetence. If the issue of the defendant’s competence to stand trial arises during trial, “the court may, consonant with double jeopardy considerations, declare a mistrial.” MCR 6.125(B).

Display of inadmissible evidence. “A mistrial should be granted only for an irregularity that is both prejudicial to the defendant and impairs his right to a fair trial.” People v Sherrill, ___ Mich App ___, ___ (2024). In Sherrill, “during trial, the prosecution inadvertently and briefly displayed a photograph of [decedent’s] body that the trial court had previously ruled was inadmissible given its graphic nature.” Id. at ___ (noting that the trial court “explained that it excluded the photograph because it was one of multiple photographs that was extremely gory and disturbing and it did not offer much in the way of evidence”). However, the trial court “refused to grant a mistrial because the photograph was inadvertently displayed and it generally was duplicative of other photographs and testimony.” Id. at ___. “[Defendant] approved of the court giving the jury a cautionary instruction to disregard that photograph.” Id. at ___. “While there [was] proof that the prosecutor may not have been careful in handling her proposed exhibits, the record [did] not show that the jury actually was able to view any excluded photographs left out on the prosecutor’s table because there were also multiple photographs that the court admitted.” Id. at ___ (“The record does not prove that the prosecutor had a pattern of displaying inadmissible evidence to the jury.”). “Given that the evidence was generally duplicative of other evidence and the court instructed the jury to disregard the photograph that mistakenly appeared on the screen, it was not an abuse of the trial court’s discretion to deny the motion for a mistrial.” Id. at ___.

Juror misconduct. “A trial court’s denial of a motion for a mistrial based on juror misconduct is an abuse of discretion only where the misconduct was such that it affected the impartiality of the jury or disqualified its members from exercising the powers of reason and judgment.” People v Messenger, 221 Mich App 171, 175 (1997). “A new trial will not be granted if no substantial harm was done thereby to the defendant, even though the misconduct may merit a rebuke from the trial court if brought to its notice.” Id. Defendant failed to show “that the presence of . . . prospective jurors during the questioning of other prospective jurors who expressed biases tainted the entire jury pool” or “that the remarks by some of the prospective jurors had any effect on the impartiality of the jury.” People v Haynes, ___ Mich App ___, ___ (2021). In Haynes, the record demonstrated “that the trial court removed for cause the majority of the prospective jurors who expressed a potential bias in favor of the prosecution, and that defense counsel used his peremptory challenges to remove the remainder.” Id. at ___. “Each of the remaining jurors affirmed that they would be impartial and that they would be able to follow the trial court’s instructions.” Id. at ___. The “prospective jurors’ answers to questions about their personal beliefs [did not constitute] extraneous evidence” that had “a real and substantial possibility that . . . could have affected the jury’s verdict.” Id. at ___ (quotation marks and citation omitted). See Section 12.13(C) for more information on extraneous evidence.

Reference to polygraph test. Reference to a polygraph test is normally inadmissible before a jury, People v Nash, 244 Mich App 93, 97 (2000), and may constitute grounds for the declaration of mistrial,   People v Smith, 211 Mich App 233, 234-235 (1995). However, an inadvertent, unsolicited mention by a witness that a polygraph was administered does not necessarily require declaration of a mistrial. People v Ortiz-Kehoe, 237 Mich App 508, 514 (1999). “[F]actors that can be considered when deciding whether a trial court abused its discretion in failing to grant a mistrial when a witness has mentioned a polygraph[ include]:

“‘(1) [W]hether [the] defendant objected and/or sought a cautionary instruction; (2) whether the reference was inadvertent; (3) whether there were repeated references; (4) whether the reference was an attempt to bolster the witness’s credibility; and (5) whether the results of the test were admitted rather than merely the fact that a test had been conducted.’” Ortiz-Kehoe, 237 Mich App at 514 (citation omitted; first alteration in original).

Unresponsive testimony. Generally, “‘unresponsive testimony by a prosecution witness does not justify a mistrial unless the prosecutor knew in advance that the witness would give the unresponsive testimony or the prosecutor conspired with or encouraged the witness to give that testimony[.]’” People v Jackson (On Reconsideration), 313 Mich App 409, 427 (2015) (citation omitted). “While . . . police witnesses (and all witnesses) have an obligation not to venture into forbidden areas of testimony, the key point is in regards to testimony which is ‘forbidden.’ An area of testimony is only ‘forbidden’ if the court rules it inadmissible. While many things, including a defendant’s criminal history, are generally inadmissible, there are exceptions for all such rules.” People v Beesley, 337 Mich App 50, 57-58 (2021) (citation omitted) (suggesting “that it would be a good practice for a trial court ruling on the admissibility of testimony to instruct the prosecutor to inform the officer regarding what has been ruled inadmissible prior to an officer’s testimony,” and that it is error to create “a blanket assumption that a police officer will in all instances know precisely what has been ruled admissible and what has been ruled ‘forbidden’). “[A]n unresponsive, volunteered answer to a proper question is not grounds for the granting a mistrial.” People v Haywood, 209 Mich App 217, 228-229 (1995) (holding that “improper comments by the victim’s father were not grounds for a mistrial” where the “witness was not in a position to know that his testimony was improper,” “the prejudicial effect of the witness’ statement was lessened because he did not refer to defendant as the cause of the victim’s injury,” and “because [the comments] were not elicited by the prosecutor’s questioning”).

D.Standard of Review

The trial court’s decision on a motion for mistrial is reviewed for an abuse of discretion. Alter, 255 Mich App at 205. A trial court should grant a mistrial only for an irregularity that is prejudicial to the rights of the defendant and impairs his or her ability to get a fair trial. Id.