There are a variety of situations in Alabama criminal trials that may cause a judge to declare a mistrial, or at least cause one of the attorneys to request one. One of the times where a motion for a mistrial may be appropriate is where the prosecutor has failed to provide evidence to the defense and then tries to use that evidence in court.
Rule 16.1 of the Alabama Rules of Criminal Procedure provides that, upon written request from the defendant, the prosecutor shall provide requested discovery within fourteen days of the request (unless a different period of time is ordered by the court). Rule 16.5 of the Alabama Rules of Criminal Procedure authorizes the trial court to impose sanctions for noncompliance with a discovery order. This rule “gives a circuit court wide discretion in considering the manner and nature of relief it affords a defendant who has been denied discovery.” State v. Moore, 969 So. 2d 169, 181 (Ala. Crim. App. 2006). The Court of Criminal Appeals has stated that it views the failure to comply with discovery “with particular disfavor and condemnation.” Pettway v. State 607 So. 2d 325, 330 (Ala. Crim. App. 1992). Also, it is not just a question of whether the prosecutor personally withheld information from the defense. When government agents working on a case know of the existence of exculpatory evidence, that knowledge is imputed to the prosecutor. State v. Moore, 969 So. 2d 169, 176 (Ala. Crim. App. 2006).
Despite the importance of complying with the rules of discovery, there is one mistake by criminal defense lawyers that often lets prosecutors off the hook for failing to disclose evidence. If the defense lawyer fails to raise a timely objection to the introduction of the undisclosed evidence, then the appellate courts may rule that the objection was waived and the issue cannot be asserted on appeal. It is not enough to raise the objection at the conclusion of the state’s presentation of their case, or even at the conclusion of the testimony of the witness who presented the evidence. “To be timely, a motion for a mistrial must be made immediately after the ground for the motion becomes apparent.” Sale v. State, 8 So. 3d 330, 340 (Ala. Crim. App. 2008). A motion for a mistrial will be deemed untimely if it is not made until the conclusion of the witness’s testimony. Powell v. State, 631 So. 2d 289, 293 n. 2 (Ala. Crim. App. 1993).
If a criminal defense lawyer fails to make a timely motion for a mistrial, the issue usually will be considered waived for the direct appeal. However, it may still be possible to assert the issue through a separate proceeding in a Rule 32 petition alleging ineffective assistance of counsel.
To discuss whether you should appeal your felony conviction or the denial of a motion for a mistrial, contact our office at (800) 737-3702 Ext. 1 or fill out our online Contact form.
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