71:2. Grounds for declaring a mistrial, Federal Trial Handbook Civil 71:2 (4th ed.

Federal Trial Handbook Civil 71:2 (4th ed.) Federal Trial Handbook Civil Database updated September 2012 Hon. Robert S. Hunter Civil Chapter 71. Mistrial References

71:2. Grounds for declaring a mistrial There is no precise rule that determines when a trial court is justified in granting a motion for a mistrial. While the matter is largely in the discretion of the trial judge, it is generally held that the power ought to be used with the greatest caution, under urgent circumstances and for very plain and obvious reasons, particularly in capital cases. Among the grounds for a mistrial are the death or serious illness of a party, a juror, or the judge. Am. Jur. 2d, Trial 1714. However, the death or serious illness of a juror usually does not present a serious problem provided that the number of jurors remaining is no fewer than six. 20:1. The death of the judge during the trial is considered in 10:35. Death or serious illness in the immediate family of a juror may also warrant the declaration of a mistrial Am. Jur. 2d, Trial 1718, if release of the juror will reduce the number of jurors to fewer than six. The court may discharge the jury when one or more members of the jury have been guilty of such misconduct as to render their discharge necessary in order to prevent the frustration of the ends of justice, or that is of such a nature as reasonably to indicate that a fair and impartial trial cannot be had. Am. Jur. 2d, Trial 1721. Where it appears that a juror, through false answers on voir dire or otherwise, was accepted on the jury when he should not have been, the court may discharge the jury. Am. Jur. 2d, Trial 1722. An unauthorized separation of the jury, or unauthorized absence of a juror, may be ground for a mistrial where it seems probable that the jury was tampered with. Am. Jur. 2d, Trial 1722. A jury may be discharged for acts or statements in their presence and out of the presence of the court that would influence their verdict, but the jury need not be discharged for that reason if jurors testify that such facts will not influence them in their verdict, and an admonitory instruction is given. Am. Jur. 2d, Trial 1723. Improper comments by the court do not normally warrant the discharge of the jury, Am. Jur. 2d, Trial 1733, nor is the misconduct of counsel normally ground for discharging the jury if the nature of such misconduct is such that its effect can be cured by an admonition to the jury. Am. Jur. 2d, Trial 1736. The court is justified in granting a mistrial when counsel persists in propounding improper questions, where it was clear that the questions are asked not to secure information but to prejudice and poison the jurys mind. Morrow v. U.S., 101 F.2d 654 (C.C.A. 7th Cir. 1939). A mistrial should be declared where counsel suggests that the defendant should respond in damages because the defendant was rich and the plaintiff was poor. Washington Annapolis Hotel Co. v. Riddle, 171 F.2d 732 (App. D.C. 1948). The effect of improper matter necessarily varies according to the atmosphere of the trial. The jury must be protected against improper remarks, both of witnesses and of counsel. Proper instruction, in many cases, will suffice to remove the prejudice. In other cases, instructions are not sufficient, so that a mistrial must be granted. Beck v. Wings Field, Inc., 122 F.2d 114 (C.C.A. 3d Cir. 1941). 2013 Thomson Reuters. No claim to original U.S. Government Works. 1

While the death of a relative of a juror may be ground for a mistrial, it is not an automatic ground for a mistrial. Cherry v. Director, State Bd. of Corrections, 613 F.2d 1262 (5th Cir. 1980), on rehg, 635 F.2d 414 (5th Cir. 1981). On the other hand, it was held not to be unreasonable to excuse a juror because his aged mother had been hospitalized. U.S. v. Dominguez, 615 F.2d 1093 (5th Cir. 1980). Discharge of a juror should no longer present any problem since the rule has been changed, in civil cases, to permit a verdict to be returned by any number of remaining jurors, provided that number is not reduced to fewer than six. It is an abuse of discretion for the trial judge to refuse to grant a mistrial when the jurors have made racial slurs against persons of the defendants race. U.S. v. Heller, 785 F.2d 1524, 86-1 U.S. Tax Cas. (CCH) 9443, 57 A.F.T.R.2d 86-1171 (11th Cir. 1986). Denials of a mistrial are deemed to be an abuse of discretion only in extraordinary situations. Reeves Trucking, Inc. v. Farmers Mut. Hail Ins. Co. of Iowa, 926 F.2d 749 (8th Cir. 1991). Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
End of Document 2013 Thomson Reuters. No claim to original U.S. Government Works.