A mistrial ends a trial before a verdict and sends the case back to be tried over again, and in Georgia that decision belongs to the trial judge.
The Standard
In McEachern v. McEachern, 260 Ga. 320 (1990), the Georgia Supreme Court put it plainly: “The granting of a mistrial because of the conduct of counsel is within the discretion of the trial court. The standard of review is abuse of discretion.” An appellate court will not disturb the ruling unless the judge abused that discretion, which is a hard showing to make.
A Rebuke and an Instruction Are Usually Enough
McEachern was a divorce tried to a jury. During closing argument the husband’s attorney told the jury that the wife had “been able to get along since the suit was filed.” The trial court rebuked the attorney and instructed the jury to disregard the remark, but refused to declare a mistrial. The Supreme Court found no abuse of discretion. So an improper comment by the other side does not ordinarily end the trial; the usual answer is a correction in front of the jury.
There Is No Mistrial Without a Jury
A mistrial is a remedy for something a jury should not have heard. In Shaw v. Shaw, 290 Ga. 354 (2012), a divorce decided by the judge without a jury, the judge said during trial: “I don’t see why it shouldn’t be divided 50-50. I mean nothing I’ve heard yet has convinced me otherwise.” The Supreme Court held that was not improper, because the prohibition against judges commenting on witness testimony is “meant to apply to comments made by a judge in front of a jury.” As the Court put it, “[t]he only person that the trial court could improperly influence with his comments was himself.”
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!