Mistrials

22-3423. Mistrials. (1) The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because: (a) It is physically impossible to proceed with the trial in conformity with law; or (b) there is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law and the defendant requests or consents to the declaration of a mistrial; or (c) prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution; or (d) the jury is unable to agree upon a verdict; or (e) false statements of a juror on voir dire prevent a fair trial; or (f) the trial has been interrupted pending a determination of the defendant's competency to stand trial. (2) When a mistrial is ordered, the court shall direct that the case be retained on the docket for trial or such other proceedings as may be proper and that the defendant be held in custody pending such further proceedings, unless he is released pursuant to the terms of an appearance bond. History: L. 1970, ch. 129, § 22-3423; July 1. Law Review and Bar Journal References: Survey of Recent Cases, 43 K.L.R. 1003 (1995). Survey of Recent Cases, 45 K.L.R. 1373 (1997). "Elect or Instruct: Presenting Evidence of Multiple Acts from Threatening Juror Unanimity in Criminal Trials," Scott R. Ediger, 74 J.K.B.A. No. 5, 28 (2005). "Criminal Procedure Survey of Recent Cases," 53 K.L.R. 983 (2005). Criminal Procedure Survey, 55 K.L.R. 797 (2007). CASE ANNOTATIONS 1. Mentioned in case where judge declared mistrial because third party attempted to influence juror. State v. Finley, 208 Kan. 49, 52, 490 P.2d 630. 2. Conviction under K.S.A. 65-4125 (b); statute applied, no error in overruling motion for mistrial. State v. Culbertson, 214 Kan. 884, 885, 522 P.2d 391. 3. Failure to grant new trial due to misstatement of juror on voir dire; no abuse of discretion. State v. Collins, 215 Kan. 789, 790, 528 P.2d 1221. 4. Mistrial declared where jury unable to agree on verdict; upheld. State v. Pruitt, 216 Kan. 103, 107, 531 P.2d 860. 5. Mistrial properly declared; failure of jury to agree; jeopardy did not attach. State v. McKay, 217 Kan. 11, 12, 13, 535 P.2d 945. 6. Refusal to grant mistrial pursuant to subsection (e) not error; not abuse of discretion or prejudice to defendant. State v. Rhodes, 219 Kan. 281, 283, 546 P.2d 1396. 7. Where jury dismissed for failure to agree second trial did not constitute double jeopardy. State v. Johnson, 219 Kan. 847, 853, 549 P.2d 1370. 8. Court did not err in denying motion for mistrial; no abuse of discretion. State v. Crowley, 220 Kan. 532, 534, 552 P.2d 971. 9. Communication between juror and witness did not require mistrial, trial court's discretion not abused. State v. Jakeway, 221 Kan. 142, 143, 148, 558 P.2d 113. 10. No abuse of discretion in refusal to declare mistrial; evidence of probation officer's card not proof of prior crime. State v. Wilson & Wentworth, 221 Kan. 359, 364, 559 P.2d 374. 11. Court did not err in refusing to declare mistrial; no abuse of discretion. State v. Henson, 221 Kan. 635, 648, 562 P.2d 51. 12. Court did not abuse discretion in refusing to grant defendant a mistrial. State v. Rueckert, 221 Kan. 727, 735, 561 P.2d 850. 13. Court may order mistrial if false statements of juror on voir dire prevent fair trial. State v. Mims, 222 Kan. 335, 339, 564 P.2d 531. 14. Grant of mistrial for false statements of juror on voir dire in discretion of trial court. State v. Mims, 222 Kan. 335, 339, 564 P.2d 531. 15. False statements of juror on voir dire which prevent fair trial cause for mistrial. State v. Bennett, 222 Kan. 358, 359, 564 P.2d 540. 16. Improper response to question held harmless; no abuse of discretion in refusal to grant mistrial. State v. Goodwin, 223 Kan. 257, 260, 573 P.2d 999. 17. Section cited; declaration of mistrial discretionary; clear showing of abuse before reversal. State v. McQueen & Hardyway, 224 Kan. 420, 427, 582 P.2d 251. 18. No showing that rights of defendant were substantially prejudiced by conduct of prospective juror. State v. McCorgary, 224 Kan. 677, 687, 585 P.2d 1024. 19. No abuse of discretion in allowing testimony of unendorsed witness; conviction of aggravated robbery affirmed. State v. Cook, 225 Kan. 259, 263, 589 P.2d 616. 20. Motion for mistrial properly overruled; objection to conclusory statements of witness sustained; jury admonished to disregard; no abuse of discretion. State v. McCambry, 225 Kan. 803, 806, 594 P.2d 222. 21. No abuse of discretion by trial court in refusing to grant new trial for inflammatory remarks of prosecutor. State v. Jacques, 2 Kan. App. 2d 277, 292, 579 P.2d 146. 22. Cited in determining double jeopardy bar to second trial. State v. Bates, 226 Kan. 277, 282, 597 P.2d 646. 23. Cited; juror reading and discussing newspaper articles not prejudicial under facts; felony murder conviction. State v. Baker, 227 Kan. 377, 383, 607 P.2d 61. 24. No abuse of discretion in refusal to declare mistrial. State v. Griffin, 3 Kan. App. 2d 443, 446, 596 P.2d 185. 25. No abuse of discretion in denying mistrial motion based on nonuniformed guards escorting defendant into court. State v. Mitchell, 3 Kan. App. 2d 635, 638, 599 P.2d 1025. 26. Double jeopardy not bar to theft retrial; burglary evidence admissible even though presented at original trial which resulted in burglary acquittal and theft mistrial. In re Shotwell & Grades, 4 Kan. App. 2d 382, 384, 385, 607 P.2d 83. 27. Trial court did not err for refusing to declare mistrial or strike jury panel because of volunteer statements of venireman made in presence of panel. State v. Ferguson, Washington & Tucker, 228 Kan. 522, 527, 529, 530, 618 P.2d 1186. 28. Declaration of mistrial entrusted to trial court's discretion. State v. Rider, Edens & Lemons, 229 Kan. 394, 407, 625 P.2d 425. 29. Declaration of mistrial is matter entrusted to trial court's discretion. State v. Everson, 229 Kan. 540, 543, 626 P.2d 1189. 30. No substantial prejudice shown in display of emotion by child witness. State v. Chears, 231 Kan. 161, 166, 643 P.2d 154 (1982). 31. Defendant failed to show abuse of discretion. State v. Bagby, 231 Kan. 176, 179, 642 P.2d 993 (1982). 32. No abuse of discretion by trial court in denying motion under K.S.A. 22-3302 or in not declaring mistrial. City of Overland Park v. Estell, 8 Kan. App. 2d 182, 188, 653 P.2d 819 (1982). 33. Substantial prejudice to defendant avoided when court sustained objection to prosecution questions regarding pending charge; no error in refusing to declare mistrial. State v. Stellwagen, 232 Kan. 744 750, 659 P.2d 167 (1983). 34. Antagonism between codefendant's counsel and prosecutor not prejudicially affecting defendant not sufficient to warrant separate trial. State v. Falke, 237 Kan. 668, 680, 703 P.2d 1362 (1985). 35. Calling mistrial required when state introduced corrected report (K.S.A. 22-3212) that altered defense theory without informing defense. State v. Lewis, 238 Kan. 94, 95, 97, 708 P.2d 196 (1985). 36. No misconduct where question misunderstood by juror during initial poll on verdict. State v. Holley, 238 Kan. 501, 509, 712 P.2d 1214 (1986). 37. Cited; juror contacts and conversations, outside affiliations, exposure to media publicity examined. State v. Ruebke, 240 Kan. 493, 506, 731 P.2d 842 (1987). 38. Cited; alleged prejudicial hearsay testimony, news headline, prosecutorial misconduct examined. State v. Hollis, 240 Kan. 521, 534, 731 P.2d 260 (1987). 39. Cited; unauthorized visit to scene of accident by jurors examined. State v. Goodnow, 12 Kan. App. 2d 294, 298, 740 P.2d 113 (1987). 40. Cited; failure to obey order in limine as reversible error requiring declaration of mistrial examined. State v. Massey, 242 Kan. 252, 264, 265, 747 P.2d 802 (1987). 41. Trial judge may grant mistrial for erroneous admission of evidence even when timely objection not made (K.S.A. 60-404). State v. Burnett, 13 Kan. App. 2d 60, 62, 63, 762 P.2d 192 (1988). 42. Double jeopardy attaches once jury sworn in (K.S.A. 21-3108); second trial barred where no manifest necessity for mistrial exists. In re Habeas Corpus Petition of Mason, 245 Kan. 111, 115, 775 P.2d 179 (1989). 43. Jury instruction and jury form not requiring unanimous decision nor theory on first degree murder (K.S.A. 21-3401) examined. State v. Hartfield, 245 Kan. 431, 445, 781 P.2d 1050 (1989). 44. Fact of polygraph examination as not rendering all evidence arising from test inadmissible per se examined. State v. Hammon, 245 Kan. 450, 455, 781 P.2d 1063 (1989). 45. Manifest necessity in declaring mistrial; second trial as not constituting double jeopardy examined. In re Habeas Corpus Petition of Hoang, 245 Kan. 560, 567, 781 P.2d 731 (1989). 46. Declaration of mistrial with sound discretion of trial court; defendant has burden of showing substantial prejudice. State v. Stallings, 246 Kan. 642, 646, 792 P.2d 1013 (1990). 47. Statement by prospective juror of knowledge about prior conviction of defendant determined as insufficient reason for mistrial. State v. Mayberry, 248 Kan. 369, 380, 807 P.2d 86 (1991). 48. Failure to allow peremptory challenges made impossible to proceed with trial; mistrial appropriately granted. State v. Smith, 16 Kan. App. 2d 478, 480, 481, 825 P.2d 541 (1992). 49. Judge's statement to potential juror examined where court misquoted next day in local newspaper. State v. Grissom, 251 Kan. 851, 931, 840 P.2d 1142 (1992). 50. Trial court's withholding impeachment evidence ascertained in camera in defendant's absence interfered with defendant's ability to cross-examine. State v. Humphrey, 252 Kan. 6, 22, 845 P.2d 592 (1992). 51. Rights to fair and impartial jury and to confront witnesses when juror acquainted with defendant and witness examined. State v. Turley, 17 Kan. App. 2d 484, 487, 840 P.2d 529 (1992). 52. Question of mistrial entrusted to trial court's discretion and will not be disturbed absent clear showing of abuse. State v. Cahill, 252 Kan. 309, 313, 845 P.2d 624 (1993). 53. Whether defendant showed substantial prejudice in alleged violation of motion in limine examined. State v. Warden, 257 Kan. 94, 125, 891 P.2d 1074 (1994). 54. Whether court should have granted mistrial where witness made unsolicited statement regarding defendant's previous prison confinement examined. State v. Rinck, 256 Kan. 848, 853, 889 P.2d 845 (1995). 55. Whether failure to grant mistrial based on improper prosecution final argument denied defendant a fair trial examined. State v. Gibbons, 256 Kan. 951, 962, 889 P.2d 772 (1995). 56. Whether court abused discretion by failing to order mistrial after prosecutor asked about previous unrelated criminal convictions examined. State v. McMullen, 20 Kan. App. 2d 985, 988, 894 P.2d 251 (1995). 57. Defense failed to present evidence of juror misconduct in voir dire by substantial competent evidence. State v. Hopkins, 257 Kan. 723, 725, 896 P.2d 373 (1995). 58. Defendant failed to show abuse of discretion where mistrial based on alleged juror misconduct denied. State v. Arteaga, 257 Kan. 874, 886, 896 P.2d 1035 (1995). 59. Court has discretion to place jury readback request in context by including direct and cross-examination on requested readback subject. State v. Butler, 257 Kan. 1043, 1068, 897 P.2d 1007 (1995). 60. Prosecution attempt to introduce inadmissible evidence during cross-examination held harmless error; mistrial denied. State v. McClanahan, 259 Kan. 86, 92, 910 P.2d 193 (1996). 61. No substantial prejudice shown by prosecutor's statement that defendant in jail on unrelated charge when clothing searched. State v. Copridge, 260 Kan. 19, 26, 918 P.2d 1247 (1996). 62. Prosecutor's improper remarks regarding reasonable doubt did not constitute grounds for mistrial. State v. Banks, 260 Kan. 918, 926, 927 P.2d 456 (1996). 63. Prospective juror's statement of belief in defendant's guilt not so prejudicial as to require mistrial. State v. Cuddy, 22 Kan. App. 2d 605, 611, 921 P.2d 219 (1996). 64. Prosecution's alleged attempt to elicit evidence of gang association did not constitute grounds for mistrial. State v. Aikins, 261 Kan. 346, 375, 932 P.2d 408 (1997). 65. Double jeopardy precluded retrial after magistrate abused discretion by granting mistrial on forum non conveniens grounds. State v. Johnson, 261 Kan. 496, 499, 932 P.2d 380 (1997). 66. Trial court refusal to grant mistrial when evidence that defendant declined to talk to police without counsel upheld. State v. Rice, 261 Kan. 567, 592, 932 P.2d 981 (1997). 67. Retrial after mistrial based on jury's failure to agree on verdict did not violate double jeopardy. State v. Burns, 23 Kan. App. 2d 352, 356, 931 P.2d 1258 (1997). 68. Dismissal of juror without reasonable cause to allow unanimous verdict would result in nullifying subsection (1)(d). State v. Cheek, 262 Kan. 91, 108, 936 P.2d 749 (1997). 69. Appeal of mistrial remanded for finding regarding prosecutorial misconduct/double jeopardy issue. State v. Muck, 262 Kan. 459, 466, 939 P.2d 896 (1997). 70. Mistrial denied where defendant failed to show substantial prejudice by violation of order in limine (polygraph examination references). State v. Ullard, 24 Kan. App. 2d 249, 257, 943 P.2d 947 (1997). 71. Admission of hearsay evidence was not so prejudicial as to constitute grounds for a mistrial. State v. Davidson, 264 Kan. 44, 55, 954 P.2d 702 (1998). 72. Mistrial abuse of court's discretion; court abdicated its authority to prosecutor. State v. Gonzalez, 25 Kan. App. 2d 862, 973 P.2d 208 (1999). 73. No abuse of discretion by trial court in refusing to grant mistrial. State v. Humphery, 267 Kan. 45, 60, 62, 978 P.2d 264 (1999). 74. No abuse of discretion in denying motion for mistrial; use of term "black males" was descriptive, not racial in nature, jurors were not intimidated. State v. Rayton, 268 Kan. 711, 1 P.3d 854 (2000). 75. No reversible error in substituting alternate juror; court not required to declare mistrial. State v. Fulton, 269 Kan. 835, 9 P.3d 18 (2000). 76. No trial court error in failing to grant motion for mistrial. State v. Maybin, 27 Kan. App. 2d 189, 2 P.3d 179 (2000). 77. Declaration of mistrial is matter within court's discretion. State v. Deal, 271 Kan. 483, 23 P.3d 840 (2001). 78. Defendant did not object to court's declaration of mistrial; double jeopardy not involved in subsequent trial. State v. Graham, 277 Kan. 121, 83 P.3d 143 (2004). 79. Defendant failed to show substantial prejudice requiring mistrial in light of overwhelming evidence and curative instruction. State v. Tatum, 281 Kan. 1098, 1113, 135 P.3d 1088 (2006). 80. No substantial prejudice caused by prosecutor's statement or expert's reference to KBI fingerprint repository. State v. Albright, 283 Kan. 418, 427, 153 P.3d 497 (2007). 81. Mentioned in opinion discussing multiple acts case requiring jury unanimity on specific criminal acts. State v. Voyles, 284 Kan. 239, 251, 160 P.3d 794 (2007). 82. Cited; motion for mistrial denied when videotape of wrong confession began to play. State v. Sappington, 285 Kan. 158, 169 P.3d 1096 (2007). 83. Failure to give unanimity instruction in multiple acts case clear error. State v. Buckner, 37 Kan. App. 2d 397, 403, 154 P.3d 42 (2007). 84. Amendment gives right to an "impartial jury," but right to unanimous verdict is statutory. State v. Holt, 285 Kan. 760, 767, 175 P.3d 239 (2008). 85. Cited; incorrect evidence that defendant had been previously convicted of attempted murder; jurors told to disregard; no mistrial. State v. Angelo, 287 Kan. 262, 283, 197 P.3d 337 (2008). 86. Right to fair trial guaranteed by 14th amendment; mistrial may be granted, when. State v. Auch, 39 Kan. App. 2d 512, 526, 527, 185 P.3d 935 (2008). 87. Cited; district court order in limine violated, this and other prosecutor's error required new trial. State v. Morris, 40 Kan. App. 2d 769, 780, 196 P.3d 422 (2008). 88. Cited; court may order mistrial at any time if prejudicial conduct makes it impossible to proceed without injustice. State v. Leaper, 40 Kan. App. 2d 902, 906, 196 P.3d 949 (2008). 89. Denial of motion for mistrial affirmed; abuse of discretion standard applied. State v. Ransom, 288 Kan. 697, 207 P.3d 208 (2009). 90. Denial of motion for mistrial upheld; change in expert testimony and wearing shackles discussed. State v. Dixon, 289 Kan. 46, 209 P.3d 675 (2009). 91. Juror informing bailiff that he saw witness take videotape evidence from court room not juror misconduct warranting mistrial. State v. Leaper, 291 Kan. 89, 238 P.3d 266 (2010). 92. No abuse of discretion by the district court in denying a motion for mistrial. State v. Foster, 290 Kan. 696, 233 P.3d 265 (2010). 93. Unauthorized electronic juror communication not juror misconduct warranting mistrial. State v. Mitchell, 45 Kan. App. 2d 592, 252 P.3d 586 (2011). 94. State met burden of proof showing that state's witnesses' identification of individuals dressed in jail clothes in courtroom as defendant's associates did not warrant mistrial. State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011). 95. Trial court did not abuse its discretion in denying defendant's motion for mistrial based on juror's absence from jury deliberations room for two minutes, as defendant failed to demonstrate that jury deliberations continued during that time. State v. Race, 293 Kan. 69, 259 P.3d 707 (2011). 96. Mistrial declared when the trial court's action was based on an error of law. State v. Hernandez, 294 Kan. 200, 273 P.3d 774 (2012). 97. District court did not abuse its discretion in declining to grant a mistrial. State v. Harris, 293 Kan. 798, 269 P.3d 820 (2012). 98. Trial court may declare mistrial where prejudicial conduct inside or outside courtroom makes it impossible to proceed without injustice to defendant or prosecution. State v. Harris, 297 Kan. 1076, 306 P.3d 282 (2013). 99. The district court was held to have abused its discretion in handling the defendant's motion for mistrial. State v. Santos-Vega, 299 Kan. 11, 321 P.3d 1 (2014). 100. A trial court is not required to use specific words in ordering or declaring a mistrial. State v. Phillips, 299 Kan. 479, 325 P.3d 1095 (2014). 101. The prejudicial effect of challenged evidence was ameliorated because inculpatory evidence of the same ilk had been properly admitted. State v. Moyer, 302 Kan. 892, 908, 360 P.3d 384 (2015). 102. A trial court may declare a mistrial if there was prejudicial conduct inside or outside the courtroom that makes it impossible to proceed without injustice to a defendant or the prosecution; court must follow a two-step analysis to determine if a mistrial is appropriate. State v. Corey, 304 Kan. 721, 730, 374 P.3d 654 (2016). 103. District court may order a mistrial if there is prejudicial conduct that makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution. State v. Kleypas, 305 Kan. 224, 269, 382 P.3d 373 (2016). 104. Defendant failed to demonstrate any prejudice where trial court denied motion for mistrial based on defendant noticing that a witness wore similar clothing as defendant. State v. Fraire, 312 Kan. 786, 481 P.3d 129 (2021). Previous | Next LEGISLATIVE COORDINATING COUNCIL General Policies 2026 Archived LCC Documents Archived LCC Meetings REVISOR OF STATUTES Archived Session Documents Archived School Finance Documents USEFUL LINKS Session Laws Kansas Administrative Regulations OTHER LEGISLATIVE SITES Kansas Legislature Administrative Services Division of Post Audit Research Department Contact Us PDF Help www.ksrevisor.gov 2026