So, I just got finished reading a transcript on a case I am appealing. Halfway through the trial, a witness for the State said something highly improper. Counsel moved for a mistrial. These moments in the reading of a transcript are a little like watching a really close college football game, because I am pulling for some magic words that preserved the record for appeal. So, I flip the page, and the lawyer explains why the testimony was improper and why a mistrial is necessary. Good stuff.

Cue the drama and suspense music. The judge dismisses the jury. As soon as the jury is out of the room, there’s a little more argument. The Court tells the State and the witness not to say it anymore. The Court makes the prosecutor warn all the other witnesses not to say it. The objection is sustained.

Then, the jury is asked back in, and the trial continues. No ruling on the motion. No renewal after corrective action. Nothing but a good appeal down the tubes. Mistrial issuesin a transcript are often the litigation equivalent of a Gilligan’s Island rescue. They almost preserve the issue for appeal, but they don’t quite make it.

So, since my theme this week is preserving the record for appeal, let me say a few things about managing mistrial motions in Georgia.

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