Over the years, I have made many motions for mistrials, appealed motions for mistrials, and had some mistrials granted in cases. Motions for mistrials are quite common in criminal trial practice. However, I have found that the concept of the mistrial as it relates to Georgia criminal law is generally misunderstood in society.

While there are countless scenarios when a mistrial can occur. The most common occurrence happens when a jury is deadlocked and the judge declares a mistrial based on a “hung jury.” In all criminal cases in Georgia, the jurors can only reach a verdict of guilty or not guilty by a unanimous vote. If the jury is split and cannot reach a verdict, the case results in a mistrial.

While this is generally beneficial to the defendant, in most cases a mistrial will not bar the State from starting all over and trying the defendant again. I believe that this is unfair and violates the protections of the Double Jeopardy Clause in the Constitution. However, the appellate courts have repeated held that retrials are permitted in most circumstances.

There are very limited circumstances when a hung jury will bar the retrial of the defendant. For example, this can happen when the trial judge or appellate court determines that there was no evidence to support the verdict . In this situation, the defendant may not be tried for the offense again.

Another common occurrence during a jury trial is when the defense attorney makes a motion for a mistrial outside the presence of the jury. When this happens, the defense attorney will argue his or her reasons why a mistrial should be granted. These reasons usually include things like inadmissible and harmful evidence that has been presented, testimony including improper character evidence such as when a witness tells the jury that the defendant has previously been in prison, and other irregularities jeopardizing the defendant’s right to a fair trial.

Trial judges usually do not grant these type of motions for mistrial unless the evidence is so prejudicial that the defendant cannot receive a fair trial. The decision to grant or deny a motion for mistrial is within the sound discretion of the judge. He or she will usually deny the motion and offer to give “curative instructions” to the jury. These instructions are meant to have the jury disregard what they have just heard. Sometimes, I do not even ask for curative instructions because they can have the effect of overemphasizing illegal and prejudicial comments.

A rare situation also occurs from time to time in the area of mistrial procedure. This is when a prosecutor “goads,” or forces a defense attorney to move for a mistrial when the State’s evidence is weak or when the prosecutor has made a grave mistake in his or her case. The vast majority of prosecutors are ethical and do not take this dubious strategic path. However, there are those rare exceptions.

The bottom line is that the grant of a mistrial is a battle won by the defendant. It can prompt the prosecutor to reevaluate the case, present another opportunity for bond if the defendant is in custody, and prevents a conviction, at least for the moment. However, the defense attorney cannot become too confident in the temporary victory. The war can be far from over.