243.2Grounds for Mistrial
- Mistrial may be declared on a motion of either party or the court’s own motion when a deadlocked jury is unable to reach a unanimous verdict, or when other manifest necessity has made it impossible to proceed in accordance with the law.
- Mistrial may also be declared when an error, defect, or misconduct has caused substantial and irreparable prejudice to the defendant’s right to a fair and impartial trial.
- The state is likewise entitled to a mistrial based on prejudice, but only if it was caused by a juror, the defendant, defense counsel, or a person acting at the behest of the defense.
- A mistrial is a drastic remedy, and lesser measures such as correcting the error and issuing cautionary instructions to the jury are usually sufficient to address the problem.
Manifest Necessity (Impossibility of Proceeding): G.S. 15A-1063(1)
The first basis for declaring a mistrial is when circumstances not instigated by the parties or their counsel have affected the proceedings such that an impartial trial cannot be conducted (e.g., adverse weather, jury tampering, illness, or death), in which case the trial judge has authority to declare a mistrial with or without defendant’s consent. G.S. 15A-1063(1) (judge may declare mistrial when “it is impossible for the trial to proceed in conformity with the law”); State v. Battle, 267 N.C. 513 (1966) (mistrial ordered on illness of defense attorney); State v. Shoff, 128 N.C. App. 432 (1998) (judge properly declared mistrial due to adverse weather conditions); State v. McGee, 60 N.C. App. 658 (1983) (prosecution witness implicated defendant’s attorneys in same crime being tried – mistrial warranted). But see State v. Grays, 276 N.C. App. 21 (2021) (manifest necessity did not support granting a mistrial to allow DNA testing on clothing that the state belatedly realized was in its possession); State v. Chriscoe, 87 N.C. App. 404 (1987) (prosecution witness who suddenly refused to cooperate with state did not support “manifest necessity” to declare mistrial over defendant’s objection when there was no evidence of misconduct).
Additionally, under G.S. 15A-1224, a mistrial may be declared based on the absence, illness, disability, or death of the presiding trial judge. See also State v. Boykin, 255 N.C. 432 (1961) (mistrial based on illness of judge).
Deadlocked Jury: G.S. 15A-1063(2)
The second (and most common) basis for declaring a mistrial arises when the jury is deadlocked and cannot reach a unanimous verdict: “upon motion of a party or upon his own motion, a judge may declare a mistrial if . . . [i]t appears there is no reasonable probability of the jury’s agreement upon a verdict.” G.S. 15A-1063(2); accord G.S. 15A-1235(d) (authority of judge to declare mistrial and discharge jury when it cannot reach a verdict).
Of course, the fact that a jury cannot immediately agree on a verdict does not require a mistrial, and a judge will normally respond to a jury’s first indication of deadlock by instructing the jury to continue deliberating. See State v. Mann, 317 N.C. 164 (1986) (judge’s instructions to jury to continue efforts); N.C.P.I. Crim.—101.40 (“Failure of Jury to Reach a Verdict”); see also State v. Wall, 304 N.C. 609 (1982) (judge’s decision not to declare mistrial after extended jury deliberations of about 12 hours was not an abuse of discretion – jury ultimately returned a unanimous verdict). In most cases, assuming the jury deadlock resulted simply from an honest disagreement between jurors and not due to prosecutorial or judicial misconduct, a mistrial granted on this basis will not bar a retrial on double jeopardy grounds. See Richardson v. U.S., 468 U.S. 317 (1984). For more information on when a retrial after a mistrial is permitted, see the preceding entry on Mistrial: Procedure and Effects.
Even though it is addressed individually in the statutes and cases cited above, the jury’s inability to reach a unanimous verdict is really just one specific type of “manifest necessity.” See State v. Pakulski, 319 N.C. 562 (1987) (jury’s failure to reach a verdict due to deadlock is “manifest necessity” justifying declaration of a mistrial); see also State v. Sanders, 347 N.C. 587 (1998) (manifest necessity supported judge’s declaration of mistrial during capital sentencing hearing when evidence from jurors showed that they were not deliberating according to the judge’s instructions).
Prejudice to Defendant: G.S. 15A-1061
The third statutory basis for declaring a mistrial is “if there occurs during the trial an error or legal defect in the court proceedings, or conduct inside or outside the courtroom resulting in substantial and irreparable prejudice to the defendant’s case.” G.S. 15A-1061. If so, the judge must order a mistrial. Id. Upon motion of the defendant (or with his concurrence) the judge may declare a mistrial at any time during the trial. Id. In the case of codefendants, the statute dictates that a mistrial may not be declared for the defendant who did not make the motion unless he joins in the first defendant’s motion. Id.
If the court to fails to order a mistrial after a sufficient showing of substantial and irreparable prejudice has been made, it is reversible error and a new trial will be ordered on appeal. See, e.g., State v. Wilson, 314 N.C. 653 (1985) (bailiff in charge of jury was the wife of prosecuting assistant district attorney -- mistrial should have been granted); State v. Malone, 65 N.C. App. 782 (1984) (defendant’s attorney testified for state, prejudicing defendant, requiring mistrial); State v. Elliott, 64 N.C. App. 525 (1983) (mistrial should have been granted when district attorney had young girl, whom defendant admitted knowing, stand in courtroom and asked defendant incriminating question about his conduct with her; this was designed to, and did in fact, inflame the jury); State v. Moose, 115 N.C. App. 707 (1994) (prosecutor referred to defendant’s being offered polygraph after being twice warned by judge not to do so); State v. Britt, 288 N.C. 699 (1975) (prosecutor improperly elicited testimony that defendant had been previously sentenced to death).
However, not every error or legal defect that may arise in a trial is sufficiently prejudicial to the defendant to require a mistrial. See State v. Sanders, 347 N.C. 587 (1998) (mistrial is a “drastic remedy,” warranted only for such serious improprieties as would make it impossible to attain a fair and impartial verdict); State v. Freeland, 316 N.C. 13 (1986) (non-constitutional error is only prejudicial if there is a reasonable possibility that, absent the error, a different result would have been reached); cf. G.S. 15A-1443 (Existence and Showing of Prejudice).
Numerous appellate cases have upheld the trial judge’s discretionary decision not to declare a mistrial when the purported error was deemed insufficiently prejudicial to the defendant. See, e.g., State v. Jackson, 302 N.C. 101 (1981) (no mistrial necessary when previously undisclosed FBI lab report used by the state was made available to defendant before state rested); State v. Sanders, 201 N.C. App. 631 (2010) (trial court denied motion for mistrial in response to state’s violation of court order against mentioning polygraph examinations); State v. Jaaber, 176 N.C. App. 752 (2006) (declining to order a mistrial in response to state’s discovery violation); State v. Jordan, 131 N.C. App. 678 (1998) (jurors’ reading of a newspaper article about trial did not require mistrial, based on facts in this case); State v. Dennis, 129 N.C. App. 686 (1998) (jurors’ seeing the defendant in handcuffs did not require mistrial, based on facts in this case).
Furthermore, in many cases the judge can employ other curative measures short of a mistrial which will sufficiently address the problem and prevent reversal on appeal for failure to grant defendant’s mistrial motion. Appellate cases generally indicate that when an error or potentially prejudicial conduct occurs, the trial judge should: (1) correct the error or conduct, investigating if necessary before doing so; (2) make findings of fact on the record; (3) give curative instructions to the jurors; and (4) question jurors about the effectiveness of curative instructions (i.e., whether jurors can follow the judge’s instructions to disregard the improper matter and remain fair and impartial). See, e.g., State v. Black, 328 N.C. 191 (1991) (trial court instructed jury to disregard codefendant’s testimony about defendant’s past drug dealing – when trial court withdraws incompetent evidence and instructs jury not to consider it, any prejudice is ordinarily cured); State v. Pruitt, 301 N.C. 683 (1981) (inadmissible evidence stricken – judge warned jury to disregard the evidence and asked jurors to confirm they could follow that instruction); State v. McGuire, 297 N.C. 69 (1979) (after outburst by codefendant, judge removed codefendant and gave curative instructions at that time as well as later in final jury instructions); State v. McDonald, 97 N.C. App. 322 (1990) (trial court’s instruction to jury was sufficient to cure any error in form of prosecutor’s question in DWI trial asking witness for the lower of two Breathalyzer readings – no mistrial needed); State v. Daniels, 59 N.C. App. 442 (1982) (prospective juror who made prejudicial statement in hearing of other jurors was removed, judge gave curative instructions and asked questions to ensure effectiveness of instructions); State v. Keys, 56 N.C. App. 75 (1982) (two jurors saw a newspaper headline about defendant being prosecuted as habitual felon – judge’s curative instruction to disregard it was sufficient).
Prejudice to State: G.S. 15A-1062
The fourth basis for declaring a mistrial is “if there occurs during the trial, either inside or outside the courtroom, misconduct resulting in substantial and irreparable prejudice to the State’s case” and that misconduct was caused by: (i) a juror; (ii) the defendant; (iii) defense counsel; or (iv) someone acting at the behest of the defendant or his counsel. G.S. 15A-1062; State v. Sanders, 347 N.C. 587 (1998) (trial judge properly granted state’s motion for mistrial under G.S. 15A-1062 based on jurors’ misconduct for failing to follow court’s instructions in conducting their deliberations); see also Arizona v. Washington, 434 U.S. 497, 505 (1978) (prejudice to state and mistrial warranted where defense counsel made improper remarks in opening statement – defendant’s right to have his case concluded in a single proceeding “is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury”). However, in the case of two of more codefendants, the judge may not declare a mistrial as to any other codefendant who does not join in state’s motion for mistrial if: (i) neither the codefendant nor his lawyer, nor anyone else acting at their behest, participated in the misconduct; and (ii) the state’s case as to the codefendant is not substantially and irreparably prejudiced. See G.S. 15A-1062(1), (2).
A mistrial can only be ordered under G.S. 15A-1062 if the misconduct was committed by a juror, the defense, or someone acting on behalf of the defense – in other words, misconduct by independent third parties, courtroom spectators, unknown persons, or even the judge will not provide a basis for declaring a mistrial under G.S. 15A-1062. However, if the conduct was sufficiently egregious that it is now impossible for the trial to continue in conformity with the law, then the court can order a mistrial under G.S. 15A-1063(1). See State v. Shuler, 293 N.C. 34 (1977) (judge had discretion to declare mistrial based on risk of prejudice after deputy sheriff made a comment to jurors about inadequacy of evidence – “we cannot say that Judge Bailey's declaration of a mistrial was not required by the ‘necessity of doing justice.’ Therefore, defendant's subsequent plea of former jeopardy was properly denied”).
There may be situations in which jury tampering, witness intimidation, or similar conduct has forced the state to move for a mistrial (such as a threatening phone call to a key witness or jurors being followed home and intimidated), and the prosecutor suspects that the defendant or someone acting on his orders committed the acts, but the state has no direct proof tying it to the defendant, as required to support a mistrial under G.S. 15A-1062.
Prosecutors facing this scenario should remember that the judge can still declare a mistrial under G.S. 15A-1063(1) based on a finding of fact that the threats, interference, etc., have now made it “impossible for the trial to proceed in conformity with the law” – regardless of who caused it. See State v. Cooley, 47 N.C. App. 376 (1980) (mistrial properly declared under G.S. 15A-1063(1) based on credible hearsay that someone had attempted to bribe up to three jurors to vote not guilty).