Motion for New Trial During Trial (Mistrial)

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 427-446

CHAPTER 36

Motion for New Trial During

Trial (Mistrial)

§36:01 New York Trial Notebook 36-2

I. GENERAL POINTS

§36:01 Definition and Purpose

A motion for a new trial during trial, more

popularly known as a motion for a mistrial, requests

the court to immediately end the trial. When the

court orders a mistrial, proceedings stop in their

tracks, and in accordance with 22 NYCRR 202.45,

a new trial is scheduled before a different jury.

Mistrials may be ordered for various reasons, e.g.:

• Events or circumstances have so tainted

the proceedings that the trial should not go

forward [see §36:20 ff];

• Critical participants are unavailable [see

§36:80 ff]; or

• The jury is unable to reach a verdict [see

§36:90 ff].

The motion for a mistrial was formerly referred

to as “a motion to withdraw a juror” [Schulze v.

Huttlinger, 150 AD 489, 135 NYS 70 (1st Dept

1912)] because without a complete jury, the trial

could not continue.

§36:02 Authority

At any time during the trial, the court, on

motion of any party, may order a new trial in the

interest of justice on such terms as may be just.

[CPLR 4402.]

§36:03 Court’s Discretion

Whether to grant a mistrial is a matter within

the sound discretion of the trial court. [Santos v.

City of New York, 135 AD2d 426, 522 NYS2d 538

(1st Dept 1987).] Sometimes, to outside observers,

this “discretion” may seem to have been stretched

rather far. In York v. York, 98 AD3d 1038, 950

NYS2d 911 (2d Dept 2012), in a very short opinion,

the majority upheld the trial court’s denial of a

motion for a mistrial, saying the motion is directed

to the court’s sound discretion, and is to be made

on a case-by-case basis. The dissenting opinion

was considerably more lengthy, and informed

the reader that this matter, a contested divorce

and ancillary matters before the court alone, “has

festered on the Supreme Court’s Docket, in one

form or another, for more than 19 years” [Id. at

1039, 950 NYS2d at 912, that trial had actually

ended more than five years earlier, but still no

decision had been rendered. The dissent thought

that a mistrial should have been declared and a

new trial held before a different judge, likening the

existing situation to that of the mythical Sisyphus,

in that the litigants “face only the certainty of

waking each morning to find the litigation stone

they rolled up the hill toward completion back

where it had started the day before, awaiting

a renewed and futile effort.” Id. at 1042, 950

NYS2d at 914-915. The dissent suggested that an

adjournment of unreasonable length can necessitate

a mistrial, citing Scarola v. St. Vincent’s Medical

Center of Richmond, 154 AD2d 364, 364, 545

NYS2d 840, 841 (2d Dept 1989) (which held

that “[i]n view of the fact that the plaintiff had

previously been granted numerous adjournments of

her trial, including two after the attorneys had been

sent out for jury selection, on the assertion that

her unidentified expert was unavailable, the court

did not improvidently exercise its discretion in

denying another such request made in midtrial for

an adjournment so lengthy that it would necessitate

a mistrial”).] (Of course, in Scarola, the motion

was for an adjournment, not for a mistrial.)

§36:04 Curative Instructions May

Prevent Mistrial

Ending an ongoing trial before the parties’

differences are resolved is not a step lightly taken.

Mistrying a case always carries a stigma of wasted

time and effort, and a new trial always entails

considerable bother and expense for all parties,

not to mention the court system. Courts prefer to

correct errors that could otherwise be grounds for a

mistrial whenever possible, and a frequent vehicle

to accomplish this is the “curative instruction.”

While it is nigh unto impossible to “unring” a bell

[People v. Griffin, 242 AD2d 70, 73, 671 NYS2d

34, 36 (1st Dept 1998)], and thus erase untoward

statements o r events from the jury’s mind, the jury is

presumed to follow a court’s instruction to disregard

such things. [People v. Smart, 96 NY2d 793, 795, 726

NYS2d 343, 344 (2001).] Trial courts will endeavor

to “cure” mishaps with curative instructions, and

depending on the circumstances, appellate courts

may or may not accept the “cure.”