Recently, I wrote about how officers can cause mistrials by unintentionally violating Evidence Rule 404(b). For our discussion, 404(b) prohibits admitting evidence of prior crimes, wrongs, or bad acts by the defendant other than what he’s on trial for, unless the prosecution moves in advance for its admission. Then the judge must decide whether the evidence meets one of the exceptions in Rule 404(b), and whether its probative value outweighs any prejudice to the defendant.
In my previous article, an officer caused a mistrial in a DUI case by mentioning the defendant’s prior arrests for DUI. The officer had no idea this could cause a mistrial.
But what if you know your response to a question will cause a mistrial, and the judge orders you to answer?
| RELATED: The surest way to cause a mistrial — and how to avoid it
An “almost” mistrial
The defendant dragged the 10-year-old victim, who was walking home from school, behind a tractor trailer and was about to rape him. Two bystanders from a nearby building saw the defendant grab the boy and ran down and saved him. I took it to trial as an attempted child sexual abuse in the first degree.
I’d instructed my arresting officer not to mention the defendant’s prior felony conviction. He was experienced and understood 404(b).
In the police car, the defendant had volunteered some incriminating statements before lawyering up when Mirandized at the station. I had the officer testify to the incriminating statements.
On cross examination, the defense attorney suggested that the defendant had said something on the way to the station other than what had already “been alleged” by the officer. The attorney then asked the officer what else his client had said. I saw my officer balk, then look at me pleadingly.
The police report hadn’t mentioned any other statements. I quickly surmised the defendant had told his attorney he’d made some exculpatory statements. I knew if that was true my officer would’ve included them in the report. I just as quickly surmised the defendant had lied to his attorney. [Note: Defendants will do that.]
I could also tell from my officer’s expression, the defendant had said something else, but the officer didn’t want to reveal it. All the jury saw was my officer being evasive — not a good thing for his credibility.
The judge looked at me. I couldn’t think of a valid objection. So, the judge ordered my officer to answer the question. And he did.
“The only other thing the defendant said was, ‘Give me a break. I just got out on parole.’”
The defense attorney made an immediate motion for a mistrial. He hadn’t “opened the door” to that. Neither of us even knew the defendant had said that since it wasn’t in the police report.
The judge sent the jury out. The defense attorney and I argued. Ultimately, the judge denied the defense motion. To this day, I think it’s because the 10-year-old victim had already testified, and the judge didn’t have the stomach to put him through that again. Then I waited until the Court of Appeals, in a split decision, affirmed the defendant’s conviction. It could just as easily have gone the other way — at trial or on appeal.
The lessons
Since then, I’ve instructed officers to always note in their report anything the defendant says. We don’t always know until all the evidence is gathered and assessed, how it might be relevant.
For example, if “Give me a break, I just got out on parole,” had been in the report, I would’ve argued pretrial that the “Give me a break,” portion was admissible as evidence of the defendant’s guilty state of mind. What did he need a break from if he didn’t do anything wrong?
I learned from the above experience that I should ask to approach the bench, note the officer appears hesitant, and suggest the question and answer be taken up out of the presence of the jury to ensure they didn’t hear inadmissible evidence.
But, what if you find yourself in a position where you think your answer could cause a mistrial, your prosecutor doesn’t know what to do, and the judge orders you to answer?
Turn to the judge and say, “Your Honor, I cannot answer that question without assistance from the court.”
I had an officer contact me after he’d attended my courtroom testimony training and given that response in a trial.
“What happened next?” I asked.
“The judge said, ‘Hearing no objection from the prosecution, I order you to answer the question, Officer.”
“S#%t!” I said. “What happened next?”
“I just repeated that,“ said the officer. “The judge looked pissed. He ordered the jury out and said I better have a real good explanation for why I refused his order, or I was looking at contempt of court.”
“What happened next?”
“I told the judge the only other thing the defendant said was that his parole officer was going to kill him, and I didn’t think the jury was supposed to hear that because it might unfairly prejudice the defendant.”
I let out the breath I’d been holding. “And?” I asked.
“The judge nodded, turned to the defense attorney and said, ‘Do you have any more questions for this officer?’ The defense attorney mumbled she’d had reason to believe her client had said something else. They brought the jury back in. There were no more questions. The defendant was convicted. Afterwards, the defense attorney shook my hand, the prosecutor thanked me, and I heard the judge told the story around the courthouse.”
Bottom line
Before trial, ask the prosecutor whether there is any 404(b) evidence you shouldn’t mention, no matter what. If something comes up neither you nor the prosecutor are prepared for and your answer would violate 404(b), be prepared to tell the judge you can’t answer the question without guidance from the court. Be prepared for the judge to be irked. That’s okay.
The judge won’t find you in contempt without making a record during which you’ll explain, and the judge will learn that you risked a contempt finding to protect the defendant’s right to a fair trial.
No mistrial. The defense attorney will look at you differently. The prosecutor will be grateful. That judge will have a lasting impression of your credibility, and so will other judges who hear the story.
Win, win, win, win.
|NEXT: Follow this comprehensive guide to being an effective courtroom witness. Read more here.
