I was told once that the Perry Mason show was fictional.
It is, in fact, very easy to get out of jury duty. This nasty jackass walked to the courtroom to the parking lot with me and was pridefully telling me how she was going to get out of it and she did exactly that. Really any idiot can do it and most of the people who are doing it are fucking idiots. This, of course, does not include people with valid excuses and there are many of those.
I know that, thank you very much, but, as I recall, in Perry Mason the confession usually came from someone in court as a witness, and most often when they were actually on the stand, being questioned by Mason.
Even if the confessions sometimes came from spectators, my point still stands: RivkahChaya’s claim that none of the confessions in show would have been admissible was highly implausible on the face of it. I know the law is frequently an ass, but it is hard to believe it is so asinine as to make a confession under oath, befoe a judge and many other court officers, inadmissible. My intuition has since been confirmed by Bricker.
Did I mention Alex is a bit of a jackass? but he’s our jackass, and we love him.
Moderator Warning
hajario, you’ve been here plenty long enough to know that insults aren’t permitted in General Questions. This is an Official Warning. Do not do this again.
Colibri
General Questions Moderator
This is utter nonsense, unless you are using a VERY loose definition of “many”. I was called to a pool of prospective jurors which was going to be for a case that they said would last six months (and if they say six months, you can bet a year minimum). They had us report to a different building in order to have room for the hundreds of people in the pool. Jury selection went on for 3 days, with the VAST majority of people trying everything they could think of to be excused. By the time they got to selecting the last juror, they had gone through at least 2/3 of the candidates. One woman had brought a note from her doctor saying that she was experiencing panic attacks at the prospect of being on that jury. (This was not considered a valid excuse, BTW.) They finally got the jury filled after having all but exhausted the pool of candidates, when one candidate volunteered, since he would be receiving full pay from his employer the entire time he served on the jury.
Clearly our experiences of jurors and jury service differ. I stand by my original statement.
Moderator Note
I think we’re getting way off track with this discussion of the jury system. Let’s get back to the actual question in the OP regarding confessions by trial participants. If you want to discuss the jury system take it to another forum.
Colibri
General Questions Moderator
OK by me, but can I say thanks for the summary? I think it may have definitively addressed the point of contention. [/last I will say on topic]
Still haven’t seen confirmation - I recall once that the statements given to police cannot be used in a joint trial since the accused has a right to confront his accuser and cross-examine, an a co-defendant cannot be compelled to testify.
So the idea is that if a person blurts out their confession in open court, then charging them and the original defendant as co-defendants would mean the statement cannot be admitted?
Of course, isn’t it the case that once the trial has started, the jury is empanelled, etc. - that by cancelling it, a second trial would result in double jeopardy? In what circumstances can a mistrial be declared and start over?
Good idea. I can’t believe people became so enraged over one offhand remark, and a really old joke at that. The phrase “get a hobby” comes to mind. 
Decades ago, famed defense atorney F. Lee Bailey wrote a piece for ***TV Guide ***about what television tends to get right and wrong in courtroom dramas.
Bailey noted that Erle Stanley Gardner, creator of Perry Mason, was a friend and colleague of his (they worked closely together on the Dr. Sam Sheppard case, the case that insired the drama series The Fugitive). Bailey once asked Gardner if he’d ever seen a real court case in which a witness broke down on the stand while being interrogated. Gardner laughed and said no, of course not.
But, as it happens, Bailey himself HAD seen it happen once. Exactly once. And Bailey wasn’t the lawyer who got the witness to confess- Bailey just happened to be a spectator that day.
If it’s a mistrial, then technically, no trial happened, so a retrial wouldn’t be double jeopardy. A mistrial is not the same thing as an acquittal.
I had a friend who was on a jury that ended in a split verdict after many days, so the judge declared a mistrial. She said the judge actually came and asked the jury’s opinion on whether it would be worthwhile to retry the defendant. She wasn’t sure why the jury was being asked at the time. About a week later, it dawned on her that the judge wanted to know, but maybe couldn’t come right out and ask “Was there one holdout blocking a clear verdict one way or the other, who was obstinate, and not participating in discussion, or was it really a split vote, with several people changing their minds back and forth?” If it was the first, a different jury might bring back a verdict, if it was the second, then probably another jury would also end in indecision.
FWIW, it was the second.
So what can cause a mistrial?
Obviously, a hung jury. But can a mistrial happen because of what a witness says, or because of an outburst from a spectator, or because the prosecutor wants to amend the charges to add a co-conspirator?
how about if a witness is shown to have apparently perjured himself?
Sometimes, sometimes, no, and usually no.
As a general rule, the jury is presumed to follow the judge’s instructions when it comes to things like disregarding what a witness says. So if a witness blurts out something that the jury shouldn’t hear, the side that is prejudiced thereby can ask the judge for a curative instruction. The judge (if he agrees it;s warranted) will specifically advise the jury that such-and-so remark was not evidence and should not be considered.
Sometimes the information is so dramatically prejudicial that it’s understood that the jury is tainted; they won’t be able to follow the judge’s guidance. In those cases, a mistrial is the usual result.
The real question is not whether or not there was a mistrial, but whether the circumstances of that mistrial represent a bar to reprosecution.
The general rule is that if the defense requests the mistrial, they are waiving any claim of double jeopardy. In other words, they’re saying, “This jury is now so badly poisoned against me that I’ll give up my valued right to be tried by this jury, and take a new jury.”
But that’s not always the case. If the prosecution invites the mistrial by deliberately causing the improper evidence to be adduced, then the defense may be able to simultaneously say, “Not only is this jury hosed, but you did it deliberately and therefore lost your chance to EVER try me.”
Sometimes prosecution witnesses spontaneously erupt with unasked testimony, thinking it will help. These kinds of “evidentiary harpoons” are difficult to sort out. They are not the fault of the prosecutor, but at the same time they prejudice the accused through no fault of his own.
Ultimately the judge gets to be the arbiter of these issues, deciding whether the mistrial was the result of “manifest necessity.” If it was, and if the blame cannot be imputed to the prosecution, the double jeopardy clause won’t bar a subsequent prosecution.
Perjury is, in general, left to the jury to discern. If some other evidence comes to light, the jury is presumed to see that it makes the perjurer unreliable. We might imagine some case in which it comes to the court’s attention that a given witness has lied, but the jury can’t see the specifics. The judge might then issue a curative instruction: “Ladies and gentleman, for reasons I cannot go into, the entire testimony of witness Jack Frost is stricken from the record, and you are not to rely upon any of it going forward.” The same calculations as above then come into play about whether the jury can reliably follow those instructions or not.
Finally, you mention the prosecutor’s desire to amend the indictment mid-trial.
It depends. If the amendment is to add a lesser-included charge, that’s generally permissible as long as some evidence during the trial supports that theory. If the amended charges add a new offense entirely, on the other hand, that is not permissible. If the new offense is based in whole or part on the same acts at issue in the current trial, in fact, the prosecutor might be stuck: an acquittal might leave him unable to charge the new offense ever. It’s a very fact-specific inquiry that deals with a concept called “collateral estoppel” and a case called Ashe v. Swenson: the acquittal on one charge operates as an an acquittal on each and every element of the charge in question that a reasonable jury could have rejected.
This was discussed in some detail back in 2007 in a thread that in turn was spawned by my 2007 Mailbag Column on double jeopardy.
I was a juror on a case that was declared a mistrial because one of the defendants had a vacation scheduled. The case was taking longer than the Judge expected, and it became obvious that we weren’t going to be able to finish. Instead of telling us all to come back in two weeks, she just declared it a mistrial.
<side note>
…afterwards, about half of us jurors were hanging out in the hallway chatting with the lawyers, and the Judge came by. She told us that this was the second time the case wasn’t completed, and thought it would be helpful for the lawyers to hear our reactions, in the hope that they could reach a settlement. So we went back into the courtroom. The lawyers went through the speed version of the rest of the case, explaining what each was going to present, what the counter arguments were, etc. We then told them what we thought of the evidence and how we were likely to have ruled.
</side note>
What justification would the lawyer (other than the fact that he’s a lawyer) have for having an uncoerced confession suppressed and why would the judge grant it?
I have read many of the Perry Mason books in my time. It used to strike me as odd that you never got the witness stand confessions in the books that you got on the TV show. Maybe it happened once in the books – my memory of them is across decades and some of them are -ahem- similar. But in the books Perry Mason gets his client out of trouble not by popping the case open like a zit but by controlling who knows what, when they know it and how they found out. Perry’s client is always innocent, but that’s not the point. The cynical underpinning to a Perry Mason story is that the truth never sets anybody free unless carefully managed. Most cases don’t make it to trial. Most don’t even make it to a grand jury before Perry has let the cops in on enough that they feel compelled to focus on a different suspect.
I have long since lost any respect for the show’s instant-gratification resolutions in which suddenly everybody knows the incontrovertible truth. I prefer the murky, jaded vision of Gardner’s novels. Perry Mason is an idealist in his own way, refusing to consider the possibility that his client is guilty (and fortunately he’s always right). But he acts like a rascal – he always manages when busted to find a technicality by which he is not strictly speaking guilty of tampering with evidence, tampering with witnesses, lying to the police, etc. But you can forgive the DA’s office for feeling that that’s exactly what he did and keeps getting away with.
Erle Stanley Gardner’s schtick was writing stories about technicalities in law. How real these technicalities were would take a California lawyer from the forties to tell you. Possibly also a Nevada lawyer, since one story hinged on a technicality that you couldn’t be forcibly extradited out of a state that you were forcibly extradited into to begin with. They were not about psyching anybody into a dramatic confession. That’s not Perry Mason’s MO.
A former friend of mine who was also quite a dramatic weirdo at times, was on trail for a sexual offence involving a young relative of his.
He had apparently been watching too many Perry Mason reruns because near the end of the trial when he was allowed to speak, he stood up and exclaimed; "I am guilty…(dramatic pause), of nothing!!
And it worked! He only got 33 years, upheld upon appeal. I am not joking. He probably should have said nothing.
If the prosecutor does not believe the confession, and thinks it is an attempt to confuse the jury and get the defendant off. If the defendant is being tried on a capital charge, there may be someone willing to risk a perjury charge so his/her son/brother/spouse doesn’t get the death penalty. This is particularly true if the confessor has an alibi, and is confident of not getting convicted on the actual murder charge, and at worst will be charged with perjury.
FWIW, juries are not allowed to consider things not presented to them as evidence (no matter what happened in 12 Angry Men). There was a case of a guy named David Dowaliby who was accused of murdering his daughter, and was tried and convicted. During the trial, the jury was shown photographs of the girl’s bedroom, and on the inside of the door, were dents that looked like they could have been made by a fist. Nothing whatsoever was said about them by either lawyer; they were just part of the photos that were shown to give the jury an idea of the layout of the house. However, during deliberations, the jury discussed the dents, and decided that 1) David Dowaliby must have made them; that 2) he punched the door; and 3) therefore had a bad temper and was capable of violence against a child.
As it happened, the dents in the door were made somehow by the previous owners, and already there when the Dowaliby’s bought the house.
David Dowaliby had already had lost his first appeal. Then, somehow, his lawyer found out about the jury having discussed the door (maybe he met with some of the jurors to plan strategy for appeal). Anyway, when the lawyer found out about this, he applied for a mistrial, and got it. I’m not sure if that qualifies as “jury misconduct,” or what, but part of any jury’s instructions is not to consider anything not presented as evidence, and the jury ignored that instruction.