Motion for New Trial During Trial (Mistrial)

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 533-554

MISTRIAL

CHAPTER 36

MOTION FOR NEW TRIAL

DURING TRIAL (MISTRIAL)

§36:01 New York Trial Notebook 36-2

MISTRIAL

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.”

CASE EXAMPLES:

• Kiker v. Nassau County, 175 AD2d 99,

571 NYS2d 804 (2d Dept 1991) (while