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Judge Singhal Makes Tough But Correct Call Granting Mistrial

First of all, welcome all to my blog! The Law Office of Matthew Glassman is finally getting off the ground after years of planning and I’d like to thank everyone for making this possible.  As for the blog, I’m hoping to write a couple short articles every week on legal issues relevant to the practice of law in Florida.  These articles are to educate the general public and are, of course, not meant as legal advice.  Enjoy reading!

So I saw  this article in the Sun-Sentinel  and thought that this would be a great first blog post as it raises an interesting evidentiary issue. As the article states, the evidence that was heard by the jury was a phone call between the defendant and the complaining witness’s mother.  In that phone call, the mother told the defendant that his own wife didn’t even believe that he was innocent.  I would imagine that a jury would find that to be very compelling and strong evidence of a defendant’s guilt.  So why, then, was this evidence inadmissible and grounds for a mistrial?

Chapter 90 of the Florida Statutes contains the evidence code applicable in criminal cases. The general rule is that relevant evidence is admissible, unless the probative value (the weight of that evidence) is substantially outweighed by the danger of unfair prejudice. F.S. 90.402, 90.403.  While that is the general rule, the exceptions to that general rule are seemingly never-ending.  In fact, entire law school classes are dedicated to learning those many, many exceptions.

With that being said, in this case, there was no exception and the statement should have never been introduced. It is incumbent upon the prosecution to know the type of evidence that is admissible and the evidence that is unfit for the jury to hear.  Sparkman v. State , 902 So.2d 253 (Fla. 4th DCA 2005).  When the admissibility of evidence is questionable, it is good practice to ask for a pre-trial ruling from the Court in what is called a  motion in limine. While it is common practice for defense lawyers to ask for redactions of statements several days prior to trial, the reality is they don’t have to. As discussed in the  Sparkman  case, defense attorneys can object to the prejudicial video or statement contemporaneously as it is being introduced or played to a jury.  Unfortunately in this case, either by mistake or misfortune and without casting blame on either side, the evidence came in.

The questions that Judge Singhal had to analyze were: how could the mother have known that the defendant’s wife didn’t believe in the defendant’s innocence?  And if the evidence should not have been admitted, what remedy was available to the Defendant?

As to question one, there are two possibilities: either the mother was speculating that that was the case, or the mother had been told by someone else that the defendant’s wife felt that way.  No matter which was the case,  the evidence should have been inadmissible and the jury should not have heard it.  First, a witness’s testimony must always be based on things of which she has personal knowledge.  In other words, the witness cannot speculate in her testimony.  Second, a witness cannot (subject to even more exceptions) testify to things that another individual told them, as that is hearsay.   And, finally, there is a firm rule on a witness not being allowed to comment on the credibility of any other witness.   See, e.g.,   Acosta v. State , 798 So.2d 809 (Fla. 4th DCA 2001).  This rule has existed for decades in Florida and its purpose is to protect the role of the jury. It is not for witnesses to say who is and is not credible; it is solely the jury that makes that determination based on the evidence presented in court.

Once it was clear to all parties that the evidence should not have been heard by the jury, Judge Singhal was presented with the difficult decision of whether to grant a mistrial.  A mistrial would mean that the trial would end and the parties would have to start anew.  If the error were minimal in light of all the evidence of guilt, a mistrial might have been too strong a sanction and the Judge could have simply instructed the jury to ignore that testimony or give a curative instruction. Often times, appellate courts find error in the evidence presented during a jury trial but decide to uphold the verdict. This is commonly referred to as “harmless error.” This is common in cases where several pieces of evidence point to guilt, not just the evidence that was mistakenly/erroneously presented to the jury.  However, in this case, the credibility of the witnesses was of paramount importance, and a mistrial was the only solution that would ensure a fair trial for the defendant.

So, while it is unfortunate that the witnesses will once again have to testify at the second trial, it’s clear that it was the right thing to do, as it prevents the potential of a re-trial years down the road after an appellate reversal. A case that gets overturned on appeal costs the state and taxpayers money, not to mention it could lead to the defendant being wrongfully imprisoned for several years while the appeal is pending. With that being said, granting a mistrial is often a very difficult decision and a Judge’s worst nightmare. Such a decision cannot be taken lightly. In my opinion, the trial judge got it right.  Kudos to Judge Singhal and, as always, great reporting by  Rafael Olmeda from the Sun Sentinel.

Thanks for reading!

Law Office of Matthew Glassman 600 SW 4th Avenue Fort Lauderdale, FL 33315