Legal Hypothetical: Can the Defense "Provoke" a Mistrial?

Here’s a legal hypothetical. Let’s say that there’s a defense lawyer, and he’s defending his client, who is accused of murder. There is some piece of evidence that the prosecution failed to disclose. Maybe they did this intentionally, because the evidence weakens their case, but only a little; or maybe it was unintentional. Let’s say that during some early stage of the trial, the defense attorney finds out about this evidence. Let’s also say that even at this early stage, the case against the client is pretty strong.

Does the defense attorney have any sort of duty to correct this while the trial is ongoing and demand that the evidence be admitted, or could he wait and, in the event that his client is convicted, save this evidence as a sort of “trump card” to be played in appeal, claiming a Brady violation?

IANAL, but I’d say there was already a Brady violation as the decision requires that the information be turned over in a timely manner , and I’d certainly think that means before the actual trial starts.

First of all, the term “mistrial” doesn’t apply to the situation the OP describes. A mistrial is something that happens at trial that results in the necessity for a second trial. (not after an appeal).
Some lawyers do (on rare occasions) try to do something in front of the jury that would require a mistrial. They can be sanctioned for this, including the costs to the other side of starting over (which can be considerable)

The question here is whether a lawyer can be aware of an issue that could be brought to the court’s attention and sit on it, to see how the trial goes and to use on appeal if the trial goes badly. Many appellate issues can be waived in not raised in a timely fashion. I think if the facts came out as described by the OP, an appellate court would consider the matter waived.

There’s an obligation on the defense to show how they they were prejudiced by the failure to disclose Brady information. In other words, what would the defense have done differently had they known about the exculpatory info, and how was their case negatively impacted?

If the defense knows about a Brady violation and sits on it, passing up an opportunity to craft their case in a different manner, I have doubts a court is going to offer any remedy.

Would it be up to the prosecution to prove that the defense knew about the evidence and didn’t bring it up, though?

It’s difficult to see how the defense could prove it was unaware. Logically the burden of proof of awareness would fall on the prosecution. They could produce a memo or witnesses showing that the defense did know. Now the defense might have to falsely claim it was unaware which could present a problem.

There’s no basis for the defense to demand that the prosecution admit evidence. If the evidence should be admitted to better the defendant’s case, then it’s up to the defendant to introduce it.

But the defense can seek a mistrial if it comes out, during the trial, that there was Brady material (aside: this is a reference to a case, Brady v. Maryland, where the court ruled that the prosecution is required to provide the defendant any exculpatory - tending to prove innocence - material that they come across) that was not provided to the defense.

This happened recently at a trial I was involved with. One of the prosecutor’s witnesses had sent them an email, after his interview, where he revealed some professional experience that made his lay opinion more valid. This background info was not conveyed to defense counsel. Also, an expert witness had changed her opinion in a subsequent report, and this was also not conveyed to the defense counsel. The result was that the court declared a mistrial due to the discovery violations.

Not, though, that this only occurred because the defense made a fuss during the trial. As others have noted, you can’t wait to see how a trial turns out and only then declare that it was unfair because you knew of some evidence that was withheld (it’s a different matter, of course, if you only raise objection after trial because that was the first time that you discovered the lack of disclosure). And, with the mistrial, the court still reset the trial to a new date - it is a very high bar to get over to get the court to declare that a mistrial precludes a re-trial.

It would help, but it’s not necessarily the prosecution’s burden.

If the defense asserts a Brady violation, it’s because the defense is asserting that there was some useful evidence that the prosecutor had but didn’t turn over.

To combat this, the prosecutor could either a) show that he did send it over (“Judge, my office emailed defense counsel on January 1st with a copy of the video”) or that the prosecutor never had it to disclose (“Judge, my office requested the surveillance videos, but the business never turned them over to us”). Note that the prosecutor is held to have access to whatever other law enforcement personnel have (so, the prosecutor can’t say that he never had it, although the police did).

But, while the prosecutor has to turn over anything they find that can help the defense, it doesn’t mean that they have to investigate on behalf of the defense. So, if there was some lead that the defendant should have followed up on, it’s on him to do so. Thus, if the defendant knew about some evidence but didn’t bring it up, it is likely to the defendant’s detriment, since the prosecutor is going to argue, “He knew about it, so it was up to him to investigate and introduce it in court.”

(Prime example: often, in the course of a case, the prosecutor will notify the defendant that they have received word that an officer involved in the case has a disciplinary history with the department. At that point, the prosecutor has done what it is required to do. It is now up to the defendant to subpoena the police officer’s records and/or request that the court provide information regarding private personnel information. If the defendant never does so, there’s no obligation for the prosecutor to introduce this information at trial, and if the defendant is later heard to complain that the officer could have been shown to be untrustworthy because of some disciplinary issue, then the response is that they should have been the one to raise it at trial. It would only actually be a Brady violation if a) the prosecutor never disclosed it, and b) the disciplinary issue was something that would have changed the case (usually, the fact that an officer had a PR issue with a fellow worker doesn’t impact their credibility as a witness)).

It seems to me that Jack McCoy either provoked one or forced a plea bargain at the threat of one on Law and Order.

I guess it depends on the jurisdiction, but the trial should not be by ambush. Similarly you can seek the evidence of the prosecution by subpoena or affidavit.

What about a variation of the idea. Consider two “independent” defense lawyers. The first knows about the evidence but doesn’t use it at trial. If there’s a conviction, then the defendant fires the first lawyer, hires the second who conveniently finds out about the evidence the first lawyer didn’t use. Appeals on grounds of incompetent defense, gets a new trial ordered.

Disclosure is a bit of a cause célèbre over here at the moment.

IANAL, but…

But the rules regarding the prosecution are quite clear AFAIK. Since they have the full power and resources of police and other evidence-gathering techniques that a defense may not have, they are obliged to disclose anything material to the case to the defense in a timely manner, whether it helps or hinders either side. (The defense is AFAIK under no such obligation)

Mind you, it may be buried in what they turn over - “Here’s 10,000 pages of discovery evidence” - letting the defense do their job and wade through it all. But if they sit on something important to the case for weeks, then a mistrial will surely result. (And presumably the judge will not be happy if the defense has to ask “can we have a delay in the trial? The prosecutor just yesterday gave us 10 boxes of closely-spaced typed evidence.”) Timely usually means about as soon as they can normally process and copy any evidence.

Of course, if the defense sits on these without good reason, they will have difficulty bringing them up after the trial. But then, maybe the defendant can claim he was not properly represented… all still somewhat career-limiting for the defense lawyer(s).

First of all, it’s not going to be trivial to get a court to give you a new trial for incompetent counsel. Just a normal oopsie screw-up isn’t enough-- they’ve got to be passed-out drunk during the trial or something, and even then a court might say “well you would have lost anyway”.

So it’s hard to imagine the first lawyer agreeing to this; either everyone thinks he’s so incompetent that he’ll never get work again, or if it’s clear it was a sham, he’s getting disbarred and never working as a lawyer again.

If you remember, the bit (among others) that got the Duke Lacrosse case tossed and the prosecutor cited for misconduct was when he decided not to share the detail with the prosecution that tests showed the alleged victim had semen from more than one man in her underwear. His excuse was that the semen was not from any of the accused, so therefore it was an irrelevant detail. The defense, the judge, and IIRC the state bar disagreed about that decision.

However, if, say, the defense had been informed of that and did not mention it during a trial - they would be hard pressed to justify using it as grounds for a new trial. Unless, of course, the defense attorney was planning a career as a Walmart greeter anyway.

Which struck me as odd because typically judges and state bars are very sensitive about this type of “rape shield” evidence. I could easily see a judge in my state asking me (rather sarcastically) that a women who had consensual sex prior to the party could not also have been raped by these men at the party wearing condoms? Surely you are not try to slut shame her, sir!

Based upon some of the stuff our Supreme Court puts out, I wouldn’t doubt that it would hold that evidence to be irrelevant and inadmissible, as much as I disagree with that type of thinking.

I am not sure it would have caused a mistrial but I’ve had a defense attorney try to provoke some kind of sanction/suppression during a trial. In our state, the roadside breath test (PBT) results are not admissible at trial although they may be discussed extensively in the police report. When testifying as an expert for the prosecution, I have almost always been given a copy. If the PBT results are mentioned in front of the jury, that’s an automatic mistrial, I’ve been told.
One attorney asking me the basis for my opinion that the defendant was above the legal limit while driving kept asking me “What other information are you basing your opinion on? What else? Anything else? Anything else in the police report? You sure?” It went way beyond the usual cross-exam question regime. I figured he was trying to get me to mention the PBT so he could ask for a mistrial.
A lot of OWI cases are tried by relatively new prosecutors so they don’t always know how to counter these tactics. This one didn’t. I just kept replying “That’s what I based my opinion on” until he stopped.

md2000, you’re citing the Canadian rule for Crown disclosure, which in my understanding is broader than the US rule.

I’m obviously subject to correction by our US law-talking dudes, but it’s my understanding that the prosecution in the US is only required to disclose exculpatory evidence, not all evidence in its possession. If the prosecutor chooses not to disclose a particular piece of inculpatory evidence, it is barred from subsequently using it at trial.

The disclosure rules for the Crown are broader. The Crown is required to disclose all evidence it has in its possession (including the police) that is broadly relevant to the case, whether inculpatory, neutral or exculpatory.

In my state, had a defense attorney asked you that and you answered with the PBT test results, that would not have gained a mistrial, nor would it have been improper for you to answer. It’s called “invited error.” I mean, he asked, right? Don’t ask a question you do not want the answer to.

Well, witnesses are supposed to be informed of the Court’s pretrial rulings. If the Judge had ruled the PBT excluded, the witness shouldn’t include that in his answer, regardless of the question (unless it’s as bad as “you also had a PBT result too, didn’t you?”). An attorney would properly expect him to filter that out before he responded.

In this case, if the court felt the attorney provoked the response, a mistrial would be unlikely. The judge would probably just ask the jury to disregard the question and answer.