Defense Motion for Mistrial. Examples of grounds raised in motions for mistrial:
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- Court members’ actions. a. United States v. Johnson , 23 M.J. 327 (C.M.A. 1987). Two motions for mistrial based on a member inadvertently seeing autopsy photos and a Government witness riding with a member. b. United States v. West , 27 M.J. 223 (C.M.A. 1988). A motion for a mistrial based on an inattentive or sleeping court member. c. United States v. Knight , 41 M.J. 867 (Army Ct. Crim. App. 1995)(extensive, frequent and member initiated communications with third party intended to gain improper and extrajudicial information relevant to key issues in case warranted mistrial). d. United States v. Hamilton , 41 M.J. 22 (C.M.A. 1994) (mistrial not required by trial counsel’s inadvertent, but improper, social conversation with president of court where no information regarding accused’s case was discussed and president was removed for cause).
- Military judge’s actions. a. United States v. Burnett , 27 M.J. 99 (C.M.A. 1988). “From early in the trial the relations between the military judge and the civilian defense counsel had been less than harmonious.” Defense counsel held in contempt. Trial proceeded. Motion for mistrial denied. b. United States v. Donley , 33 M.J. 44 (C.M.A. 1991). Military judge did not err when he failed, sua sponte , to declare a mistrial over a defense objection. During general court-martial for premeditated murder of accused’s wife the president of court-martial over-heard sidebar conference during which military judge and counsel discussed inadmissible hearsay. Military judge offered to declare a mistrial but defense counsel objected. c. Noncompliance with discovery rules. United States v. Palumbo , 27 M.J. 565 (A.C.M.R. 1988), pet. denied , 28 M.J. 265 (C.M.A. 1989). Mistrial not necessary as trial judge gave proper curative instructions after the trial counsel elicited statements made by the accused which were not disclosed to the defense before trial and also elicited testimony that the accused had invoked his rights.