A mistrial may be declared in a criminal trial when the trial cannot continue without a miscarriage of justice. The decision of whether to declare a mistrial is discretionary with the trial court. Mistrials due to evidentiary errors at trial are rare, as often an evidentiary error can be corrected with some alternative remedy or instruction, and the trial can continue. In the recent Tennessee case of State v. Wooten, M2012-00366-CCA-R3-CD (Tenn.Crim.App. 8-6-2013), the Court of Criminal Appeals affirmed the denial of a mistrial when a State’s witness testified that she asked the Defendant to take a polygraph examination.

Polygraph test results are not admissible in Tennessee criminal trials. Testimony regarding a defendant’s willingness or refusal to take a polygraph is also not admissible.

In the Wooten case, the Defendant was charged with and ultimately convicted of two counts of aggravated sexual battery of his daughter. The victim testified about multiple incidents of abuse which occurred in 2004 when the Defendant was temporarily separated from the victim’s mother. Years later, when the Defendant and the victim’s mother were back together, the victim told her mother. The mother did not at first believe the victim. But the victim’s mother eventually confronted the Defendant about it in 2010. According to the testimony of the victim’s mother, the Defendant admitted the abuse to her, said he had “freaked out” about it and “felt really dirty.” The couple agreed to get divorced and the Defendant agreed to get counseling and to avoid dating women with children.

According to the Defendant, the victim had fabricated the incidents to retaliate against him for a spanking he gave her. The Defendant said the victim’s mother was angry at him for dating other women, ignoring her texts, and was using the abuse allegations as leverage in a child support dispute. The Defendant claimed he never admitted sexual abuse and only told the victim’s mother he had touched the victim when she was a child to apply medication. He said he did tell her he would get counseling and avoid dating women with children, only to appease her at the time.

During the cross examination of the victim’s mother, she was asked if, rather than admitting to abuse, the Defendant had only acknowledged touching the victim to apply medication. The witness replied that was not what the Defendant had said and she had asked him to take a polygraph test. Before she could say what his response was, the Defendant’s counsel objected. The trial court sustained the objection and instructed the jury to disregard the comment. The Defendant requested a mistrial, which was denied.

On appeal, the Court of Criminal Appeals affirmed the trial court ruling, noting there was no revelation of whether the Defendant wanted to take a polygraph, no further mention of a polygraph, and that the jury is presumed to follow the instructions of the trial court. The instruction to disregard the comment was sufficient in this case for the trial to continue.

For more information about possible grounds for a mistrial, contact The Lanzon Firm.