Chapter 6 - § 6.8 • MOTIONS FOR MISTRIAL

• Jurisdiction: Colorado

§ 6.8 • MOTIONS FOR MISTRIAL

Colorado

➢ Mistrial is Drastic Remedy. Mistrial is a drastic remedy, warranted only if prejudice to a party cannot be remedied by other means. Wark v. McClellan, 68 P.3d 574, 578 (Colo. App. 2003); Smit v. Anderson, 72 P.3d 369, 374 (Colo. App. 2002).

➢ Grounds for Mistrial — Improper Testimony. Mistrial is warranted when the prejudice created by improper testimony renders the trial unfair to the other party, but the trial court has discretion whether to grant a mistrial. Genova v. Longs Peak Emerg. Physicians, P.C., 72 P.3d 454, 463 (Colo. App. 2003). Where a party's counsel asked only a limited number of clearly improper questions — contrary to an in limine order precluding reference to post-accident conduct — over eight days of trial, and where the court did sustain objections based on the in limine order on other occasions, the trial court did not abuse its discretion in denying a motion for mistrial. Blood v. Qwest Servs. Corp., 224 P.3d 301, 320-21 (Colo. App. 2009), aff'd on other grounds, 252 P.3d 1071 (Colo. 2011).

➢ Grounds for Mistrial — Misconduct of Counsel. When an attorney offers statements of fact before the jury concerning matters that are neither admitted nor established by the evidence, it may be grounds for mistrial if the prejudice engendered by the comments denies a party the constitutional right to a fair trial. Ortivez v. Davis, 902 P.2d 905, 908 (Colo. App. 1995); see Pyles-Knutzen v. Board of County Comm'rs, 781 P.2d 164, 167-68 (Colo. App. 1989) (statement before jury that the plaintiff could not be present because she had had Caesarean section; while statement went beyond that authorized by the court to explain the plaintiff's absence, deviation was inadvertent and not serious enough to warrant mistrial). Counsel's suggesting to the jury that a party had entered a plea to a traffic ticket charge, in violation of the Colorado statute, was sufficiently prejudicial to justify a mistrial. Ripple v. Brack, 286 P.2d 625, 627 (Colo. 1955).
➢ Grounds for Mistrial — Judicial Misconduct. Trial courts must exercise restraint over their conduct and statements, in order to maintain an impartial forum. Clements v. Davies, 217 P.3d 912 (Colo. App. 2009). A trial judge's role is "to administer justice, control courtroom decorum, and ensure that the case is decided on the basis of relevant evidence and the proper inferences therefrom." Id. Comments in the jury's presence that cause disappointment or embarrassment

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