New York Judge Declares Mistrial After Prosecutor Plays Inadmissible Body Cam Footage Accusing Defendant of Being in a Gang

It is rare that a court will declare a mistrial based on a prosecutor’s inadvertent error, with the general thinking being that a curative instruction can “cure” the error and tamp down the prejudice. For example, in People v. Windley, 181 A.D.2d 703 (N.Y. App. 2d 1992), the court concluded that the prosecutor inadvertently showing the jury the defendant’s mugshot could be “cured” by a curative instruction, ruling as follows:

The prompt curative action of the trial court minimized any prejudicial effect of a prosecution witness’s inadvertent reference to a “mug shot”…, and the trial court offered to deliver further curative instructions. The defendant rejected this offer and moved for a mistrial. The trial court was correct in denying this application since a mistrial is unwarranted when a less drastic remedy is available to cure the error

On the other hand, when the error is of a high magnitude, a curative instruction will fall short of the mark, and the court must declare a mistral. A good example can be found in a current case out of Schenectady.

According to the Times Union,

A judge recently declared a mistrial in the double-murder case against a Rotterdam man after prosecutors mistakenly played a recording in court from a police body camera about the defendant possibly belonging to a street gang.

The prosecutor attributed the error to a paralegal who was responsible for reviewing the recording after the judge ruled that the pertinent portion was inadmissible. 

The prosecutor also argued that “the error could have been handled by instructing the jury that ‘gangs don’t have anything to do with this case’ and that the police officer’s comment to a colleague was speculation.”

It’s kind of easy to see why the trial judge turned this argument aside because the admission of such evidence of alleged gang affiliation when that was completely unconnected to the case at hand was arguably more unfairly prejudicial than if it had some nexus to the case. As such, it’s hard to see how a curative instruction could have “cured” anything in this trial.

-CM