U.S. v. Short, 77 M.J. 148

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings; the power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons, including times when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members
2. a mistrial is an unusual and disfavored remedy; it should be applied only as a last resort to protect the guarantee for a fair trial, or where the military judge must intervene to prevent a miscarriage of justice
3. because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions

Military Justice Personnel: Military Judge: Discretion

1. absent clear evidence of an abuse of discretion, an appellate court will not reverse a military judge’s determination on a motion for mistrial; in determining whether the military judge abused his discretion by not granting a mistrial, an appellate court looks to the actual grounds litigated at trial; the challenge is to assess the probable impact of the inadmissible evidence upon the court members; that judgment is rooted in a simple tolerable risk assessment that the members would be able to put aside the inadmissible evidence
2. in this case, in the absence of any prejudice, the military judge did not abuse his discretion in declining to declare a mistrial based on misconduct by the trial counsel for eliciting inadmissible testimony and offering improper argument where the military judge properly sustained defense objections, warned trial counsel about his behavior, and issued several curative instructions; trial counsel’s conduct was not so prejudicial that the curative instructions were inadequate, and there was simply no evidence here that the members failed to comply with the military judge’s curative instructions; absent contrary indications, it may be presumed that the panel followed the military judge’s instructions; furthermore, the mixed findings and very lenient sentence indicated that the members were capable of and did put aside the inadmissible testimony and improper argument; in light of the longstanding view of mistrials as an extraordinary remedy and the directive that military judges explore other remedial action first, the military judge here was not required to declare a mistrial

Trial Stages: Merits: Mistrial

1. a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings; the power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons, including times when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members
2. a mistrial is an unusual and disfavored remedy; it should be applied only as a last resort to protect the guarantee for a fair trial, or where the military judge must intervene to prevent a miscarriage of justice
3. because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in this case, in the absence of any prejudice, the military judge did not abuse his discretion in declining to declare a mistrial based on misconduct by the trial counsel for eliciting inadmissible testimony and offering improper argument where the military judge properly sustained defense objections, warned trial counsel about his behavior, and issued several curative instructions; trial counsel’s conduct was not so prejudicial that the curative instructions were inadequate, and there was simply no evidence here that the members failed to comply with the military judge’s curative instructions; absent contrary indications, it may be presumed that the panel followed the military judge’s instructions; furthermore, the mixed findings and very lenient sentence indicated that the members were capable of and did put aside the inadmissible testimony and improper argument; in light of the longstanding view of mistrials as an extraordinary remedy and the directive that military judges explore other remedial action first, the military judge here was not required to declare a mistrial

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. absent clear evidence of an abuse of discretion, an appellate court will not reverse a military judge’s determination on a motion for mistrial; in determining whether the military judge abused his discretion by not granting a mistrial, an appellate court looks to the actual grounds litigated at trial; the challenge is to assess the probable impact of the inadmissible evidence upon the court members; that judgment is rooted in a simple tolerable risk assessment that the members would be able to put aside the inadmissible evidence