6.11Mistrial: Victim’s, Witness’s, or Spectator’s Prejudicial Effect on Defendant’s Right to a Fair Trial

A defendant may seek a mistrial¹ if he or she believes the actions of a victim or spectator violated his or her right a fair trial. “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 may arise after a witness gives testimony involving a forbidden area and the testimony would have otherwise been inadmissible. People v Beesley, 337 Mich App 50, 58 (2021). “[T]estimony is only ‘forbidden’ if the court rules it inadmissible,” and all witnesses, including law enforcement officers, are obliged to avoid forbidden areas of testimony. Id. at 57-58. Although a police officer may often be aware of what is forbidden, “a police officer will [not] in all instances know precisely what has been ruled admissible and what has been ruled ‘forbidden.’” Id. at 58. To minimize the occurrence of a witness’s inadvertent mention of inadmissible testimony, the Beesley Court suggested that the trial court, when it rules that certain testimonial evidence is inadmissible, advise the prosecution to inform a police officer about what has been ruled inadmissible before the officer gives his or her testimony. Id.

“A trial court should grant a mistrial only for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial.” People v Ortiz-Kehoe, 237 Mich App 508, 513-514 (1999). Whether a trial court should grant a defendant’s motion for mistrial is not determined by whether an irregularity or error occurred; the trial court’s decision “depends principally, if not exclusively, on whether a defendant has been prejudiced by [the] irregularity or error.” Beesley, 337 Mich App at 55 (emphasis added). “The test to be used in determining whether a mistrial should be declared is not whether there were some irregularities, but whether the defendant had a fair and impartial trial. . . . [A]n unresponsive, volunteered answer to a proper question is not cause for granting a mistrial.” People v Lumsden, 168 Mich App 286, 298-299 (1988).

A trial court exercises its discretion when deciding if a defendant’s motion for mistrial should be granted. Beesley, 337 Mich App at 54.

Cases discussing mistrial in response to a victim’s, witness’s, or spectator’s actions in the courtroom include:

•Beesley, 337 Mich App at 58-60 (court did not abuse its discretion when it denied defendant’s motion for mistrial because the court offered defendant a choice of remedies to counter any prejudice resulting from the witnesses’ testimony about his criminal history; defendant could have opted to have the offending testimony struck from the record but opted instead to first, cross-examine one witness to show that defendant had not previously been convicted of any of the same offenses for which he was on trial, and second, to have the court deliver a limiting instruction to the jury about the proper use of testimony concerning defendant’s criminal record).

•People v Bauder, 269 Mich App 174, 195 (2005), abrogated in part on other grounds by Giles v California, 554 US 353 (2008), and overruled in part on other grounds by People v Burns, 494 Mich 104 (2013)² (courtroom outburst by victim’s brother did not constitute grounds for mistrial where “[t]he [court] record show[ed] that the trial court twice questioned the jurors regarding their ability to disregard the outburst and to remain fair and impartial[, t]he court was [] meticulous in the steps it took to ensure that [the] defendant received a fair and impartial trial[,] . . . the person yelled that [the] defendant had killed his sister, [which the] defendant did not dispute[, and] . . . the trial court instructed the jury that the outburst was not evidence”).

•People v King (Bradford), 215 Mich App 301, 304-305 (1996) (trial court’s denial of the defendant’s motion for mistrial due to “certain spectators at the trial w[earing] buttons depicting the victim [were] not ‘so grossly in error as to deprive [the defendant] of a fair trial or to amount to a miscarriage of justice’. . . [where the buttons] were less than three inches in diameter, . . . not brought to the court’s attention until the twelfth day of trial, and were thereafter ordered excluded”).

•Gonzales (Ronnie), 193 Mich App at 265 (trial court’s denial of the defendant’s motion for mistrial following the complainant’s outburst during cross-examination that the defendant was a “‘murderer’” was not an abuse of discretion where the trial court properly instructed the jury to disregard the complainant’s outburst and the defendant’s attorney had already brought the defendant’s prior incarcerations to the jury’s attention before the complainant referred to him as a “‘murderer’”)

•Lumsden, 168 Mich App at 298-299 (no grounds to grant the defendant’s motion for mistrial when two prosecutorial witnesses both referenced in the jury’s presence to the defendant’s alleged connection to other murders where the witnesses’ references “were unresponsive, volunteered answers to proper questions[,] . . . [the] references were very fleeting and were not emphasized to the jury[,] . . . [and] . . . had a cautionary [jury] instruction been requested, it could have removed the taint, if any, left by the references[]”).