When May a Judge Declare a Mistrial in a Jury Trial?

It is critical that a defense attorney understand the tremendous value a motion for mistrial, if granted, can have for defendant.  It is a request to terminate the trial after the trial has begun, due to some interruption before a verdict is reached. 

If granted, the constitutional bar in criminal trials in the Fifth Amendment and Article 1, section 15 of the California Constitution bar double jeopardy, so defendant cannot be put to trial again.

A trial is deemed to have begun when jeopardy to defendant attached, i.e., when a jury is sworn in or, in a court trial, when the first witness is sworn. Rhinehart v. Municipal Court (1984) 35 Cal. 3d 772, 779, n8.

The motion should be granted if there is prejudice that cannot be cured by a jury instruction or jury admonition. People v. Jenkins (2000) 22 Cal. 4th 900, 985; People v. Hines (1997) 15 Cal. 4th 997, 1038. 

A retrial cannot take place unless there is legal necessity for granting a mistrial or defendant consents to the mistrial. Curry v. Superior Court (1970) 2 Cal.3d 707.

Legal necessity typically arises from an inability of the jury to agree (Penal Code § 1140) or from physical causes beyond the control of the judge (Penal Code § 1141) such as the death, illness or absence of a judge or juror (Penal Code § 1147) or the defendant (Penal Code § 1043). 

Courts have the statutory authority to replace sick jurors.  When jurors are properly excused, the right to a trial by jury is not violated.  People v. Burgener (1986) 41 Cal. 3d 505; see also Penal Code § 1089 (a court may discharge and replace a juror upon a showing of ill or upon a showing of good cause that the juror is unable to perform his duty).  The juror does not have to come to court for the judge to discharge the juror.  People v. Dell (1991) 232 Cal. App. 3d 248; People v. Tinnin (1931) 136 Cal. App. 301 (juror’s testimony as to illness not required).

When determining if there is good cause to discharge a juror, the judge must conduct a hearing sufficient to determine this.  If this judge does not conduct such a sufficient hearing, it is an abuse of discretion subject to appellate review.  See Burgener, supra; People v. Huff (1967) 255 Cal. App. 2d 443.

However, such a retrial may not take place when there is “bad faith conduct by a judge or prosecutor” that “threatens the harassment of an accused by successive prosecutions or a declaration of a mistrial [based on legal necessity] so as to afford the prosecution a more favorable opportunity to convict” the defendant. United States v. Dinitz (1976) 424 U.S. 600; People v. Batts (2003) 30 Cal. 4th 660 (double jeopardy bars retrial and protects defendant if the prosecution intended to cause a mistrial).

It is quite common, particularly in longer trials, for a juror to have to miss trial to care for a sick child, ill parent or just deal with some type of medical emergency.  When this takes place, the judge can replace that juror with an alternative juror and continue on with trial.  Such an issue is not grounds for mistrial.  People v. Bell (1998) 61 Cal. App. 4th 282; see also People v. Smith (2005) 35 Cal. 4th 334.

Legal necessity for the judge to declare a mistrial (and then have a second trial) can be ineffective assistance of counsel, but only if the trial court judge makes an informed decision whether there is a breakdown in the relationship between defendant and defendant sufficient to constitute legal necessity for stopping the trial.  Carrillo v. Superior Court (2006) 145 Cal. App. 4th 1511.

If more than one juror is removed and there are no remaining alternatives, a mistrial is not required unless defendant objects or refuses to proceed with fewer than 12 jurors.  Larios v. Superior Court (1979) 24 Cal. 3d 324.  If defendant agrees to proceed with fewer than 12 jurors, the People must also agree.  It is important to note that defendant (not his counsel) must waive the right to a 12-member jury.  People v. Ernst (1994) 8 Cal. 4th 441 (waiver by defendant’s attorney alone is insufficient).

Defendant can consent to retrial either expressly or by implication.  If defendant moves for a mistrial, or joins in such a motion, defendant will be held to have consented.  People v. Boyd (1972) 22 Cal. App. 3d 714.  However, if defense counsel initiates the judge’s inquiry into a matter that ultimately results in an order declaring a mistrial, this does not ipso facto transform counsel expression of concern into an implied consent to a mistrial.  People v. Compton (1971) 6 Cal. 3d 55.

Similarly, if defendant requests a lengthy mid-trial continuance and / or asks that a case be reassigned to another judge (thereafter), consent to a retrial is inferred.  People v. Ramirez (1972) 27 Cal. App. 3d 660.

For more information about mistrial issues, please click on the following articles: