2012 (September Term)
United States v. Vazquez, 72 M.J. 13 (a mistrial is a drastic remedy that is reserved for only those situations where the military judge must intervene to prevent a miscarriage of justice; because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action).2008 (September Term)
(in this case, the error in the trial counsel’s comments referencing appellant’s invocation of his right to remain silent was harmless beyond a reasonable doubt, where the military judge took immediate corrective action which included giving the members a curative instruction, requiring trial counsel to redact her statements, asking each member individually whether he could follow the military judge’s instructions, and reminding the members at the close of the evidence about appellant’s absolute right to remain silent; because the military judge’s actions following the improper comments adequately cured the error and rendered it harmless beyond a reasonable doubt, a mistrial was not an appropriate remedy).
United States v. Thompkins, 58 MJ 43 (relief for a military judge’s failure to grant a mistrial is available only upon clear evidence of abuse of discretion).
(the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor; courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness).
(a mistrial is a drastic remedy to be used only sparingly to prevent manifest injustice; it is appropriate only whenever circumstances arise that cast substantial doubt upon the fairness or impartiality of the trial).
(in ruling on a mistrial motion, the military judge should examine the timing of the incident, the identity of the factfinder, the reasons for a mistrial, and potential alternative remedies; most importantly, the military judge should consider the desires of and the impact on the defendant).
United States v. Diaz, 59 MJ 79 (a mistrial is an unusual and disfavored remedy; it should be applied only as a last resort to protect the guarantee for a fair trial; declaration of a mistrial is a drastic remedy, and such relief will be granted only to prevent manifest injustice against the accused; it is appropriate only whenever circumstances arise that cast substantial doubt upon the fairness or impartiality of the trial).
(a military judge has considerable latitude in determining when to grant a mistrial; this Court will not reverse the military judge’s decision absent clear evidence of abuse of discretion).
(a curative instruction is the preferred remedy to purge the prejudice resulting from impermissible expert testimony; the granting of a mistrial is an extreme remedy which should only be done when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members).
(with regard to the alleged murder of the child, the military judge committed prejudicial error in denying the accused’s mistrial motion based on the inadmissible testimony of an expert witness who testified that the death was a homicide and that the accused was the perpetrator, where the expert was the key prosecution witness, where there was a related error in the admission of an earlier expert’s testimony, where the military judge’s curative instruction was inadequate and confusing, where the government’s case rested on circumstantial evidence, and where evidence of uncharged misconduct was improperly admitted).
(with regard to the alleged aggravated assault by intentionally burning, the military judge committed prejudicial error in denying the accused’s mistrial motion where the prosecution of the homicide and the assault was inextricably intertwined, where an expert witness improperly identified the accused as the perpetrator of the assault, where there was the cumulative impact of the improper testimony of three expert witnesses, and where evidence of uncharged misconduct was improperly admitted).
(the R.C.M.s specifically authorize a judge to declare a mistrial as to only some of the proceedings; this Court also has sanctioned this remedy).
United States v. Taylor, 53 MJ 195 (a mistrial is a drastic remedy that should be used with great caution, under urgent circumstances, and for plain and obvious reasons; declaring a mistrial rests in the discretion of the military judge when manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings).
(military judge did not abuse his discretion in denying mistrial based upon objection to trial counsel basing his opening statement upon inadmissible evidence that gang members would dress in a certain way to kill someone; military judge gave cautionary instructions, defense counsel did not object to content of those instructions, the members are presumed to follow that instruction, and that presumption was not rebutted).
United States v. Harris, 51 MJ 191 (a mistrial may be declared in the discretion of the military judge when such action is manifestly necessary in the interests of justice because of circumstances arising during the proceedings which case substantial doubt upon the fairness of the proceedings; mistrial is a drastic remedy which should be used only when necessary to prevent a miscarriage of justice).
(military judge should examine numerous factors in deciding whether to grant a mistrial, including: timing of the incident leading to the question of mistrial; the identity of the factfinder; the reasons for a mistrial; potential alternative remedies such as instructions; and, most importantly, the desires of and the impact on the defendant).
(military judge did not abuse his discretion in not granting mistrial sua sponte where he ultimately determined he could rely on limiting and cautionary instructions, as well as closing instructions; such instructions, along with the presumption that the members followed those instructions, eliminated the risk of harm from improper credibility evidence).
United States v. Gray, 51 MJ 1 (mistrial was not required, even though trial counsel made remarks susceptible of being interpreted as a comment on right to remain silent, where the judge gave an instruction to prevent members from being misled by comments and directed the members not to draw any inference from appellant’s exercise of the right to remain silent).
United States v. Barron, 52 MJ 1 (a mistrial is a drastic remedy which a judge should only grant in extraordinary cases to prevent manifest injustice to the accused and only when circumstances arise that cast substantial doubt upon the fairness or impartiality of the trial; a curative instruction is the preferred remedy in lieu of declaring a mistrial as long as that instruction avoids prejudice to the accused).(military judge did not abuse discretion by refusing to grant a mistrial when expert witness engaged in disqualifying actions which indicated bias in favor of the prosecution because: (1) there appears to be no per se rule requiring a mistrial for a prosecution expert who acts as a prosecutor in front of the members; (2) any bias was fully disclosed to members by permitting defense to cross-examine this expert fully to reveal her pro-prosecution conduct; (3) the military judge gave a particularly focused instruction which tended to disparage the expert’s testimony and was generally detrimental to the prosecution’s case; and, (4) the expert’s conduct was not so prejudicial to the defense that curative instructions were unlikely to cure it).