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  • Brian Foley

What to do if the prosecutor goes off the rails.

Updated: Apr 25

So you feel like you're winning the case. You've gotten evidence excluded that you wanted to be excluded and the jury seems to be going your way. But you can sense that the prosecutor is getting kind of pissed off about it. Then closing arguments come and that evidence you didn't want and had successfully excluded comes bursting forth from the prosecutor's mouth. What should you do and how will it stack up on appeal?

In general when something unduly prejudicial has occurred during the trial you should ask for a mistrial. But if the prejudicial thing that occurred wasn't really the fault of the State or was the result of "manifest necessity" like when a jury is hung on their verdict, then you can't get the case dismissed with prejudice.


If the prosecutor goes off the rails then you should ask for a mistrial with prejudice and have the court make a finding that the prosecutor was either intentionally goading defense to ask for a mistrial or reckless as to if the inflammatory remarks would cause a mistrial.


The Federal and Texas constitutions protect citizens from double jeopardy and a retrial is prohibited if the prosecution intentionally causes the mistrial with intent to provoke the mistrial. In Bauder v. State, expanded this standard to when the prosecutor's reckless misconduct requires a mistrial. Bauder v. State, 921 S.W.2d 696, 699 (Tex.Crim.App. 1996). "Under either standard, the constitutional violation is that of depriving the defendant of his chosen jury, a jury presumably poised to acquit him."

Ex Parte Wheeler, 203 S.W.3d 317, 322-23 (Tex. Crim. App. 2006).


So how do you determine the intent or recklessness of the prosecutor? Appellate courts love factor tests and here comes another one.


1) Was the misconduct a reaction to abort a trial that was "going badly for the State?" In other words, at the time that the prosecutor acted, did it reasonably appear that the defendant would likely obtain an acquittal?

2) Was the misconduct repeated despite admonitions from the trial court?

3) Did the prosecutor provide a reasonable, "good faith" explanation for the conduct?

4) Was the conduct "clearly erroneous"?

5) Was there a legally or factually plausible basis for the conduct, despite its ultimate impropriety?

6) Were the prosecutor's actions leading up to the mistrial consistent with inadvertence, lack of judgment, or negligence, or were they consistent with intentional or reckless misconduct?


Ex Parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006)


In Federal cases you would have to show that the prosecutor intentionally goaded the defense to request the mistrial. "[State law] is satisfied by a finding that the prosecutor acted recklessly and played 'foul' to 'win at any cost' because the first trial was likely to end in an acquittal were it tried fairly."

Ex Parte Wheeler, 203 S.W.3d 317, 323 (Tex. Crim. App. 2006). See also “Nevertheless, we hold that an attorney representing the State in a criminal action who does manage to cross the line, either deliberately or recklessly, must then forego any further prosecution for the same offense if the trial judge properly grants a mistrial at the defendant's request.” Bauder v. State, 921 S.W.2d 696, 700 (Tex. Crim. App. 1996)


The court however did not dismiss the cases with prejudice in Bauder or Wheeler instead remanding the case for reconsideration after announcing the new reckless standard in Bauder and finding that the trial court did not abuse its discretion in finding that the prosecutor did not act recklessly or manifestly improper in Wheeler.

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