Tuesday, September 23, 2003

Mistrial by "Withdrawal" of Juror

The following snippet of oral argument was reported in Sacher v. United States, 343 U.S. 1 (1950):

Mr. Sacher: The point I am making is that in every available means your Honor is conveying to the jury your lack of sympathy if not hostility to the defendants, their counsel's presentation of the case, and in these circumstances I want certainly to note on behalf of my clients a vigorous objection to your Honor's conduct and I wish to join Mr. Gladstein in the motion to declare a mistrial by the withdrawal of a juror.

In Sher v. Stoughton, 666 F.2d 791 (2d Cir., 1981), the U.S. Court of Appeals referred to the following statement made in a New York State murder trial:

Defense counsel then moved for the withdrawal of a juror and for a mistrial ....

In United States v. Russel Means, 513 F.2d 1329 (8th Cir., 1975), the court stated (footnote omitted):

In 1815 Justice Story, sitting as a Circuit Justice, in United States v. Coolidge, 25 F. Cas. 622 (No. 14,858) (C.C.D. Mass. 1815), approved the withdrawal of a juror, creating a technical mistrial in a situation where the jury could not agree on a verdict.

From Wood v. Allstate Ins. Co., 1997 U.S. Dist. LEXIS 14663 (E.D. Pa. 1997):

In response, the [federal trial] Court gave Defendant the option of moving for a recess in the trial so that Defendant could depose Mr. Ashby or moving for the withdrawal of a juror, which would result in a mistrial.

Summers v. State, 2003 Md. App. LEXIS 114 (2003):

Not every trivial act on the part of a juror during the course of the trial amounts to such misconduct as requires the withdrawal of a juror and the continuance of the case. A contrary holding would result in a multiplication of mistrials ....

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