Opinion
No. K09-CP03-008825-6-A
July 9, 2004
MOTION TO DISQUALIFY, MOTION TO STRIKE LINE OF QUESTIONING AND MOTION FOR MISTRIAL
In the respondent's memorandum, she concedes that the motion to disqualify the petitioner's lawyer is moot because the trial has already concluded and, therefore, this decision will not address the motion to disqualify.
Background
This motion was heard in the context of a termination of parental rights hearing, in which the petitioners, John and Connie S., seek to have the parental rights of their daughter, Joey S., terminated as to two of her four children. During the trial on the underlying issue of whether this court should terminate Joey S.' parental rights, counsel for the respondent made an oral motion to disqualify, to strike the line of questioning and for a mistrial. This motion was made during the trial on April 12, 2004 in response to the line of questioning conducted during cross examination of the respondent by the petitioners' counsel. The line of questioning by petitioners' counsel that forms the basis for the motion presently before this court is found on lines 20-22 of page 84 of the April 12, 2004 hearing transcript. The question at issue stated: "If I told you that I was standing behind that door and heard all of this, and I would not want you to perjure yourself, would that change your testimony?" Oral argument was held on this motion on April 26, 2004, but this court reserved its ruling until it had a chance to review the parties' memoranda on the issue. The respondent submitted a brief in support of her motion on May 14, 2004. In her memorandum, the respondent, Joey S., argues that due to the impropriety of the line of questioning at issue, the testimony provided by her on cross examination on April 12, 2004 should be stricken from the record. She further argues that if her testimony on cross examination is stricken by this court, then this court should also strike the testimony of Josephine D. provided on April 26, 2004, because it served as a rebuttal to the improper line of questioning. The respondent went on to cite various cases that address the issue of whether, and in what situations, a lawyer is permitted to act as a witness. In the respondent's memorandum, she argues in the alternative that if this court deems it appropriate, it should grant a mistrial due to the prejudice that she has suffered from the improper line of questioning by petitioners' counsel.
The petitioners submitted a memorandum of law in opposition to respondent's motion, also on May 14, 2004. In the petitioners' memorandum in opposition to the respondent's motion, the petitioners argue that lawyers are capable of being competent witnesses. The petitioners discuss the Rules of Professional Conduct and the Rules of Evidence. They argue that "[i]t is within the province of the court to rule on questions of admissibility of evidence, to hear questions posed of witnesses and either allow or prevent testimony, and even sometimes to strike inadmissible answers to proper questions that could not have been anticipated until heard." Petitioners' Memorandum, p. 5-6. They also assert that "the representations of counsel (as well as the unanswered question) in the well of the court did not constitute evidence, was not testimony and in the ordinary course of trial practice, is presumed to be within the duties of the trial court to accept representations and arguments with respect to proffered testimony without affecting the court's fact finding when ruling on admissibility." Id., 7.
Discussion
This court agrees with the respondent in that petitioners' counsel's comments and questioning of Joey S. were highly inappropriate. This Court does not believe there was any malice or wrongful intent by petitioner's counsel. It may have been a case of overzealousness on his part. Nevertheless, personal knowledge from the petitioners' counsel should not have been injected in his cross examination of the respondent.
Although this court has not been directed toward any juvenile Practice Book or General Statute sections that pertain to a motion for a mistrial, this court will apply the highest standard under Connecticut law by utilizing the criminal Practice Book section, in addition to applicable criminal law cases to the present matter. This court recognizes the severity of these proceedings, in that the respondent, Joey S., stands to have her parental rights terminated and, therefore, this court will apply the highest standard in adjudicating the present motion before it.
In so doing, Practice Book § 42-43 is applicable to this case. It states: "Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant's case. If there are two or more defendants, the mistrial shall not be declared as to a defendant who does not make or join in the motion." In this case, Joey S. is in the place of a defendant, because she stands to have her parental rights terminated, just as a criminal defendant stands to have their liberty rights taken away from them.
"[A] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds . . . [T]he trial court [has broad discretion] to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial." State v. Kirsch, 263 Conn. 390, 416, 820 A.2d 236 (2003). "While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated . . . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided . . . The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome." (Citation omitted; internal quotation marks omitted.) State v. Taft, 258 Conn. 412, 418, 781 A.2d 302 (2001) (holding that the trial judge properly denied the defendant's motion for mistrial because, inter alia, the court twice gave a curative instruction to the jury in regard to the line of questioning at issue).
Of course, since there are no jury trials in juvenile matters, the remedy of curative instructions is not available. Even if this case were a "bench trial" in a criminal matter, any prejudice that a defendant could suffer as a result of an improper line of questioning could be substantially reduced by having the line of questioning struck from the record as a curative measure. The fact finder would ignore the improper testimony. Moreover, the entire testimony of Josephine D. might be stricken, as well.
However, juvenile matters are different from criminal matters. While courts dealing in juvenile matters are concerned with the rights of parents in termination of parental rights cases, courts also have a duty to protect the best interests of the children. C.G.S. Sec. 45a-717(g)(1). Courts may find that the statutory criteria for termination of parental rights have been met, but that there can be no termination of parental rights because it is not in the best interests of the children.
In this case, the exclusion of part of the testimony of Joey S. and all of the testimony of Josephine D. would protect the rights of the parent. However, in doing so, it might not be in the best interests of the children. At this point, in order to protect both parental rights and the best interests of the children, it would be better to start over with a new trial.
Therefore, the motion to strike is denied and the motion for a mistrial is granted.
BURKE, J.