2021 (October Term)
United States v. Rudometkin, 82 M.J. 396 (the general rule is that a military judge’s determination on a mistrial will not be reversed absent clear evidence of an abuse of discretion).
(RCM 915(a) provides that a military judge may declare a mistrial 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).
(in this case that involved an accused who was convicted of rape, aggravated sexual assault, assault consummated by a battery, and adultery, assuming that the military judge should have disqualified himself due to his own inappropriate relationship with another servicemember’s wife, the reviewing judge did not abuse his discretion in denying the accused’s motion for a mistrial where the reviewing judge considered the general similarity of the accused’s misconduct and that of the military judge, emphasized that the military judge was not aware that he was suspected of adultery until after the trial and first post-trial session in which the accused’s sentence was reduced, determined that the administrative investigation into the military judge’s conduct made it very unlikely that injustices would occur in other cases, and concluded that a reasonable member of the public, knowing all the facts and circumstances, to include not only the suspicious personal relationship between the military judge and the other servicemember’s wife, but the sentence, sentence reduction, and crux of the case involving rape and violence against women, would not lose confidence in the justice system).
2019 (October Term)
United States v. Carter, 79 M.J. 478 (a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings).
(the power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons, including times when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members; curative instructions are the preferred remedy, and absent evidence to the contrary, a jury is presumed to have complied with the judge’s instructions).
(in this case, where the government counsel improperly alleged that a witness testifying as to an adultery specification had been bribed, the military judge did not abuse his discretion where he declared a mistrial as to the adultery specification but not the other alleged offenses and where he issued curative instructions to the members informing them that the bribery allegations were unsubstantiated and instructing them to disregard all of that witness’s testimony and any inferences that anyone had attempted to bribe a witness in this case).
2017 (October Term)
United States v. Short, 77 M.J. 148 (a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings; the power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons, including times when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members).
(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, or 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, such as giving curative instructions).
2016 (October Term)
United States v. Commisso, 76 M.J. 315 (a military judge has discretion to declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings).
(the power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons).
(failure to grant a motion for a mistrial is an abuse of discretion if, had the members answered material questions honestly at voir dire, defense counsel would have had a valid basis to challenge them for cause).
(under the facts of this case, the military judge abused his discretion in denying appellant’s motion for a mistrial where, in appellant’s trial for various sex offenses, three panel members gave inaccurate statements during voir dire about their association with the sexual assault response system and their exposure to the facts of appellant’s case and they failed to correct these inaccurate statements during trial; not only did the members fail to answer material questions honestly at voir dire, had they answered honestly, their responses would have provided a valid basis for a challenge for cause, especially considering the cumulative effect of having three panel members serve on the same panel under a specter of possible bias that they each recognized, and even talked about during trial, but did not disclose).
2014 (September Term)
United States v. McFadden, 74 M.J. 87 (after appellant testified on her own behalf, a court member asked if she was aware of the concept of lying by omission by exercising her right to remain silent; after the defense moved for a mistrial, the military judge denied the motion and provided the following curative instruction to the members: “You may not consider the accused’s exercise of her right to remain silent in any way adverse to the accused. You may not consider such exercise as lying by omission.”; in this case, the member’s question was not so prejudicial that a curative instruction was inadequate, and there is no evidence the members did not follow those instructions; as such, the military judge did not abuse his discretion by denying the motion for mistrial and he did not have a sua sponte duty to excuse the court member).
(a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings).
(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; it 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, such as giving curative instructions; a curative instruction is preferred to granting a mistrial, which should only be granted when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members).
2012 (September Term)
United States v. Coleman, 72 M.J. 184 (a military judge has discretion to declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings).
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).
(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).
(a
military judge's
timely
remedial actions, such as giving curative instructions, may prevent the
manifest
injustice that would necessitate a mistrial).
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).
2000
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).
1999
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).