What is a Mistrial?

Sherry Holetzky
Sherry Holetzky
If a judge cannot ensure a fair verdict, they they might declare a mistrial.
If a judge cannot ensure a fair verdict, they they might declare a mistrial.

At times, a trial cannot continue, due to an irrevocable error which corrupts the process to the point that a fair and impartial conclusion cannot be reached. Impartiality is the premise of any trial and if it is impossible to achieve, a mistrial must be declared. Generally, such an error prejudices one party so badly that the jury cannot reach a verdict, or the judge cannot ensure that the verdict would be a fair one.

In some cases, a mistrial is requested due to seemingly unfair comments made or inadmissible evidence being presented in opening or closing remarks. If jury instructions cannot repair the damage, the judge may have to call a mistrial. It is difficult to expect a jury to simply ignore such statements, and to then proceed in an objective manner as if they had not been made.

Unexpected events, especially of the catastrophic nature, can also result in mistrial. The death of an attorney, judge, juror, or necessary witness may necessitate it. An attorney may file a motion for a mistrial. Grounds for mistrial must be shown, reflecting that the situation cannot reasonably be restored to an impartial proceeding by other means.

Since cases with glaring errors will generally be overturned upon appeal anyway, a judge will likely grant the motion. In some cases, the judge will call a mistrial without a motion being filed, if the circumstances overwhelmingly indicate that either a unanimous or an objective verdict is impossible.

Even when a mistrial is declared, it does not necessarily mean that the case is over. It may be dropped or a new trial may be ordered. The judge will declare it to be with or without prejudice. If it is declared with prejudice it means the case cannot be retried.

A mistrial with prejudice will occur in cases that involve prosecutorial misconduct or judicial misconduct. This is possible in high profile cases when it appears that assembling an impartial jury is not possible. It may also be necessary if the available evidence is unduly prejudicial and must be excluded. If the prosecution cannot make its case without that evidence, there is no sense in retrying it.

The term without prejudice means the case may be retried at a later date. After declaring a mistrial, the judge may order a new trial. The decision to go forward or to drop the case completely is sometimes left up to the prosecution, based on its ability to effectively and fairly retry the case. If a new trial is ordered, it will start from the beginning and require the assembling of a new jury.

You might also Like

Discussion Comments


@SarahSon: I believe the judge in a civil lawsuit would be more likely to dismiss the case with or without prejudice rather than declare a mistrial as we know it. Sometimes a civil case has not "ripened" enough to justify a hearing, so the judge may dismiss the case without ruling on any of its merits. This way, the plaintiff can wait for more evidence of wrongdoing to emerge before filing a new claim.

The judge can also decide that the plaintiff doesn't have a provable case at all, or else he or she is suing the wrong defendant and should file a new claim later against the right one.

Unlike criminal trials where there are dozens of legal procedures both sides must follow, civil case are mostly determined by the preponderance of evidence. The plaintiff doesn't have to be a great lawyer, just bring enough proof to tip the scale in his or her favor. Mistrials are generally reserved for serious misconduct by attorneys or a jury's inability to reach a verdict.


Does it make any difference whether a case is a civil or criminal procedure when it comes to a mistrial?

I would think that most criminal cases would be much more apt to have a mistrial because of the nature of the case.

I imagine there would be times when there could also be a mistrial for a civil case as well. It just seems like you don't hear about those as often.


I have been on a jury three different times. Some people enjoy this experience, but I don't like to be on a jury.

One of the cases I was on, there were several times we were told to disregard some of the information that had been presented.

Even though you know you are supposed to do that, it is much easier said than done. I had a hard time just pretending like I didn't hear it.

When we got together and deliberated it did help me keep things in perspective. I can understand how a mistrial could happen if this happened very often during a trial.

There is only so much information that can be presented, and then not allowed to be used, and still be able to make an impartial decision.


The first time I ever served on a jury, the case was a new trial from a previous mistrial. I was nervous because this was my first time serving on a jury, and I was hoping for an easy case.

I ended up being on a jury to decide a case of a man who was being accused of murder. I quickly found out this was not going to be an easy case.

This happened in another part of the state and was moved to my area because they had a hard time finding jurors who were impartial and not familiar with the events surrounding the case.

In this situation, it was beneficial for the defendant to have a mistrial. This way his case was tried in front of jurors that had not already formed ideas in their head whether he was guilty or innocent.

Post your comments
Forgot password?
    • If a judge cannot ensure a fair verdict, they they might declare a mistrial.
      By: Andrey Burmakin
      If a judge cannot ensure a fair verdict, they they might declare a mistrial.