The Peterson Almost-Mistrial: Prosecutor’s Mistake or Malice?

A courtroom isn’t supposed to be a free-for-all, open-season attack on the defendant. We have rules when it comes to evidence and testimony. These rules strive to do one thing: ensure a fair trial made up reliable and relevant evidence.

Judges don’t like surprises. Lawyers don’t either. That’s why we have pretrial hearings and coach prepare our witnesses for trial.

Pretrial hearings allow the judge to rule on the admissibility of evidence before it shows up in trial, as once the metaphorical bell has been rung, it can’t be unrung. Realistically, you can’t tell the jury, “Oh wait. Never mind. Pretend you didn’t hear about that inadmissible child molestation charge.” Odds are, once they’ve heard it, it’s going to affect their verdict.

Yesterday, in the Drew Peterson trial, the defense counsel, and the Judge, got a little surprise, reports the Chicago Sun-Times. A witness for the prosecution testified that after Peterson told the neighbor to stop helping his late wife change the locks, a bullet appeared in his driveway.

Suspicious? Yes. Was the bullet ever proven to be from Mr. Peterson? No.

Peterson Sketch
Image Courtesy of the Chicago Tribune’s Insanely Talented Cheryl A. Cook

This is exactly the type of unreliable evidence that we don’t want in trial. In fact, the judge told the prosecutor to keep it out.

Mistake or malice?

The judge thought malice. He referred to the prosecution’s tactics as “very troubling” and “a low blow.” The prosecutor claimed it was a mistake and that he intended to ask additional questions to clarify that there was no proof that the bullet was left by Peterson. The defense argued for a mistrial.

One of the primary rules of trial law is that you always know what the witness is going to say before you ask the question. The last thing you want in trial is for the witness to testify to something that kills your case.

However, if the witness is clever enough, you can sometimes have them “accidentally” drop damaging information into their testimony. It’s good old-fashioned shady gamesmanship.

Now, courts hate wasted time almost as much as they hate surprise testimony about prohibited topics. If a mistrial is declared, it is almost certain that there would be a new trial. That means a new jury selection process and weeks of pre-trial proceedings.

Yesterday, the judge reportedly gave the defense the option of striking the witness’ testimony or arguing for a mistrial. The problem was, the defense’s cross-examination helped their case tremendously. Tossing the entire witness would undo all of that good work.

Today, according to NBC, the defense chose to argue for a mistrial. Instead, the judge compromised and tossed out only the final portion of the witness’ testimony, which was the part about the bullet “message”.

Still, the question remains. Can the bell be unrung? The “troubling” conduct of the prosecutor is on record. Should Peterson be convicted, this could become grounds for an appeal.

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The Peterson Almost-Mistrial: Prosecutor’s Mistake or Malice?