Motion for New Trial During Trial (Mistrial)

• Author: Edward L. Birnbaum/Carl T. Grasso/Justice Ariel E. Belen
• Pages: 1091-1112

MISTRIAL

36-1

CHAPTER 36

MOTION FOR NEW TRIAL

DURING TRIAL (MISTRIAL)

I. GENERAL POINTS

§36:01 Def‌inition and Purpose

§36:02 Authority

§36:03 Court’s Discretion

§36:04 Curative Instructions May Prevent Mistrial

II. PROCEDURE IN GENERAL

§36:10 Is a Motion Necessary?

§36:11 How to Make

§36:12 Caution: Move Promptly to Avoid Waiver

§36:13 Reservation of Ruling

III. GROUNDS

A. Prejudicial Conduct or Statements

1. By Counsel and Witnesses

§36:20 Counsel’s Prejudicial Comments

§36:21 Improper Questioning of Witnesses

§36:22 Witness’s Prejudicial Comments

§36:23 Mention of Inadmissible Evidence

§36:24 Mention of Insurance

§36:25 Fraudulent Representations by Witness

§36:26 Improper Course of Conduct by Counsel

§36:27 Counsel’s Conduct Outside Courtroom

§36:28 Failure to Provide Discovery

2. By Jurors or Judge

§36:40 Juror Conduct

§36:41 Judge’s Conduct

§36:42 Erroneous Evidentiary Rulings

§36:43 Inconsistent Verdict

3. By Others Connected With Trial

§36:50 Court Personnel, Investigators, Assistants, etc.

§36:51 Liability Insurers

4. By Persons Not Connected With Trial

§36:60 Effects of Extraneous Events on Jurors

§36:61 Adverse Publicity

MISTRIAL

New York Trial Notebook 36-2

B. Surprise

§36:70 Unfair Surprise

§36:71 Change of Theory

C. Indispensable Personnel Unavailable

§36:80 Judge or Attorney Unavailable

§36:81 Party Unavailable

§36:82 Jurors Unable to Continue

D. Jury Unable to Reach Verdict

§36:90 Hung Jury

§36:91 Reserved Ruling on Directed Verdict May Prevent Mistrial

E. Other

§36:100 Settlements

§36:101 Error on the Part of the Court

§36:102 Dismissals Following Jury Selection

IV. APPEAL

§36:110 Mistrial Granted Before Jury Returns Verdict

§36:111 Mistrial in Non Jury Trial

§36:112 Mistrial Granted After Jury Verdict

§36:113 Mistrial Denied

§36:114 Appeal of Sanctions