Tort Law

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Mistrials. 

2006 Castle v. Lester, 272 Va. 591, 636 S.E.2d 342.

During course of trial, plaintiff’s counsel inadvertently offered improper and prejudicial testimony. Defendant moved for mistrial that the court denied but offered cautionary instruction which defense counsel said he would consider. Absent a manifest probability of prejudice a mistrial is not required when the court grants the objection and instructs the jury to disregard the remark or question. In determining whether a mistrial should be granted the court should consider the relevance and content of the improper reference, whether the reference was deliberate and the probable effect on the jury.

2004 Lowe v. Cunningham, 268 Va. 268, 601 S.E.2d 628.

In this personal injury action where there was no claim for lost wages, defense counsel inquired of plaintiff not having paid child support to the mother of his children. Trial court instructed the jury to disregard the comment but refused to grant a mistrial. In the absence of a manifest probability of prejudice to the party, a new trial is not required when a court sustains an objection to an improper remark or question and thereafter, instructs the jury to disregard it. If the prejudicial effect of the question or remark cannot be removed by the instruction, then the party is entitled to a new trial. In this case, the question addressed matters that were irrelevant and highly prejudicial. In this case where counsel deliberately places irrelevant issues before a jury for an improper purpose, the likely necessity of granting a mistrial increases. Mistrial should have been granted in this case.

1989 Clark v. Chapman, 238 Va. 655, 385 S.E.2d 885.

Mistrial is not appropriate unless there is manifest probability that objectionable evidence or statements before jury are prejudicial, not just minor irregularities which may be corrected by instruction from court. Statements by plaintiff that she did certain things because she needed money were not sufficient to justify mistrial.

1975 Davis v. Maynard, 215 Va. 407, 211 S.E.2d 32.

Plaintiff’s counsel made obvious attempt during voir dire of jury to inform them that defendant was insured. Since action was deliberate, mistrial should have been granted.

1973 Carter v. Shoemaker, 214 Va. 16, 197 S.E.2d 181.

Mistrials should be declared where there is manifest probability that objectionable evidence of statements before jury prejudice adverse party. In such instances, error is not cured by court’s instruction. Statement by defendant’s counsel in opening statement that plaintiff had been involved in several accidents while defendant had not was grounds for mistrial.

1968 State Farm Mut. Ins. Co. v. Futrell, 209 Va. 266, 163 S.E.2d 181.

Plaintiffs counsel argued “golden rule” by stating that in determining compensation jury should consider verdict it would want if same thing happened to them. Impropriety cured by instruction; not error to fail to declare mistrial.

1950 Hinton v. Gallagher, 190 Va. 421, 57 S.E.2d 131.

Where act of misconduct by juror has been discovered which might justify mistrial, parties must raise their objection at that point and not after verdict.