While the issue of mistrial typically arises in a jury trial, it can be an issue in a bench trial as well. See, e.g., Bennett v Med Evaluation Specialists, 244 Mich App 227 (2000).
“A mistrial should be granted only when the error prejudices one of the parties to the extent that the fundamental goals of accuracy and fairness are threatened.” In re Flury Estate, 249 Mich App 222, 229 (2002).
Where an error cannot be cured by an instruction from the court, a motion for mistrial is appropriate, but not mandatory. Reetz v Kinsman Marine Transit Co, 416 Mich 97, 102 (1982). The Court explained this conclusion by stating:
“A party may have such an investment in time and money in a trial at the point when incurable error arises that he would rather see the case go to the jury, hoping that the jurors will be able to ignore the improper argument. Such a decision is eminently reasonable, both for the individual litigant and the judicial system as a whole. A trial which has consumed valuable private and public resources need not be aborted because the jury may have been improperly influenced or distracted by closing argument.” Reetz, 416 Mich at 102.
“[T]he cumulative effect of an attorney’s misconduct at trial may require retrial when the misconduct sought to prejudice the jury and divert the jurors’ attention from the merits of the case.” Yost v Falker, 301 Mich App 362, 365 (2013) (quotation marks and citation omitted) (holding that although defense counsel “intended to divert the jury” through his repeated suggestions during opening statement, cross-examination, and closing argument “that the jury should find for [the] defendant to deter the filing of lawsuits,” retrial was not required “because a note sent by the jury to the court during deliberations unequivocally demonstrated that [defense counsel’s] efforts had not succeeded and that the jury was not prejudiced against the plaintiff’s claim”).
Where a party’s improper conduct affects the outcome of a trial, an appellate court may reverse even if the appellant’s attorney did not attempt to cure the error through objection. Reetz, 416 Mich at 102. The Michigan Supreme Court explained how these types of cases are reviewed:
“When reviewing an appeal asserting improper conduct of an attorney, the appellate court should first determine whether or not the claimed error was in fact error and, if so, whether it was harmless. If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted. Tainted verdicts need not be allowed to stand simply because a lawyer or judge or both failed to protect the interests of the prejudiced party by timely action.” Reetz, 416 Mich at 102-103.
“[A] court’s inherent power to sanction misconduct . . . includes the power to award attorney fees as sanctions when the egregious misconduct of a party or an attorney causes a mistrial. The ability to impose such sanctions serves the dual purposes of deterring flagrant misbehavior, particularly where the offending party may have deliberately provoked a mistrial, and compensating the innocent party for the attorney fees incurred during the mistrial.” Persichini v William Beaumont Hosp, 238 Mich App 626, 640-641 (1999) (the trial court properly limited the request for attorney fees to only the fees associated with time spent during trial; an award of attorney fees as mistrial sanctions cannot include the fees associated with trial preparation or the retrial itself).
A decision on a motion for a mistrial is within the trial court’s discretion and will be reversed on appeal only for an abuse of discretion that resulted in a miscarriage of justice. In re Flury Estate, 249 Mich App 222, 228 (2002).