In the article “Jury Could Reasonably Infer That Defendant Withheld Fact She Participated in Robbery In Order To Receive State Benefits,” the defendant did not succeed in her claim that the State presented insufficient evidence to convict her of fraudulent receipt of worker’s compensation benefits. In her appeal, she additionally argued that because an officer improperly referenced the defendant’s request for counsel during his testimony, the court should have declared a mistrial but failed to do so.

During cross-examination, defense counsel pressed the officer regarding whether he had taken a statement from the defendant following the robbery, asking variants of the same question. The officer consistently stated he did not take a statement, and upon repeat questioning, clarified that he had not done so because the defendant asked for an attorney. Defense counsel did not object to this testimony, and it was the judge who pointed out, outside the presence of the jury, the potential constitutional issue of referencing the counsel request.

At this point, defense counsel made an oral motion for a mistrial, arguing that the statement was improper and non-responsive. The court denied the motion, finding that the officer’s testimony was “sort of responsive,” and instead instructed the jury to disregard the officer’s testimony about the defendant’s request for counsel.

Motion for a Mistrial

Declaring a mistrial is an extreme measure granted in very few situations, such as prejudice undermining the right to a fair trial. If the court can implement a curative action to counter the prejudice, oftentimes through a jury instruction, this is the preferred course of action. It is within the trial court’s discretion to grant or deny a motion for a mistrial, and the defendant “bears the burden of establishing that there was irreparable prejudice to the defendant’s case such that it denied him a fair trial.”

However, if the error claimed by the defendant resulted from questioning on his part during cross-examination, “[s]o long as the answer is clearly responsive to the question asked, the questioner may not later secure a reversal on the basis of any invited error.”

The Court’s Decision

In this case, the Appellate Court determined that defense counsel invited the error. By repeatedly asking the officer whether he had taken a statement from the defendant, despite consistent negative answers, defense counsel “opened the door for [the officer] to explain why there was no statement.”

In addition, the defendant failed to show how she was denied a fair trial. The judge gave a curative instruction to disregard the statement, and “[a]bsent evidence to the contrary, we presume that the jury followed the court’s limiting instruction.” The Court further noted the strength of circumstantial evidence against the defendant. Therefore, this argument on appeal was rejected as well, and the judgment affirmed.

Written by Lindsay E. Raber, Esq.

When faced with a charge of larceny, burglary, conspiracy, or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport, CT office at 203-221-3100 or at