Friday, January 1, 2021
Court of Appeals of Texas Finds Judge Didn't Need to Declare a Mistrial After Spectator Shouted "That's All Lies" During Defense Counsel's Opening Statement
Assume that a defendant is charged with murder. Further, assume that, during defense counsel's opening statement, a spectator in the courtroom yells, “That's all lies!” Does the judge need to declare a mistrial, or will a curative instruction suffice? That was thee question addressed by the Court of Appeals of Texas in its recent opinion in Rankin v. State, 2020 WL 7702629 (Tex.App. 2020).
In Rankin, the facts were as stated above. After denying defense counsel's motion for a mistrial, the judge gave the following curative instruction to he jury:
Ladies and gentlemen, sorry for the interruption. We're not sure-the person is not a witness and will not be returning to the courtroom. He is ordered to be-he will not be back in the courtroom during the proceedings of this case. The only thing that you may consider as evidence in this case is evidence that's introduced to you and evidence received from the witness stand. I'm going to instruct you to disregard the statements from the audience. All right?
After she was convicted, the defendant appealed, claiming that the judge should have declared a mistrial. In addressing the issue, the Court of Appeals of Texas noted that
In determining whether a mistrial is warranted, we balance three factors: (1) the severity of the misconduct, (2) curative measures, and (3) the certainty of conviction without the misconduct....A trial court's prompt instruction to the jury to disregard improper testimony will cure error.
Applying this analysis, the court concluded that
We presume that the jury followed the trial court's instruction to disregard the spectator's outburst....Given the brief, isolated nature of the statement, the trial court's decision that any prejudice flowing from the statement was curable was within the zone of reasonable disagreement. We conclude the trial court did not abuse its discretion in denying Rankin's motion for mistrial.