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PRESERVATION OF THE RECORD
A motion to pass and to declare a mistrial is a remedy often requested by defense counsel in these situations:
When extraordinarily prejudicial and inadmissible evidence is divulged to the jury by the State.
Improper questioning of a witness, especially the defendant, by the prosecutor.
Discovery or Brady violations occur.
The jury is hopelessly deadlocked.
Instances of prosecutorial misconduct.
Fundamental errors that call into question the reliability and integrity of the court’s fact-finding process.
The denial of a motion to pass and to declare a mistrial will not be preserved for appellate review unless defense counsel requests in the alternative a limiting or cautionary instruction or requests some other alternative form of relief from the court. For example:
“Your honor I would respectfully submit the motion to pass is the only remedy that will cure the prejudice that inures to my client as the result of .”
“But if the court sees fit to deny my motion to pass, then in the alternative I would request that the court give the following cautionary or limiting instruction to the jury…” [BE CREATIVE.]
With inadmissible evidence or improper questioning the alternative remedy is a cautionary instruction, i.e. to ignore the information presented.
When prejudicial evidence has been admitted for a limited purpose [e.g. 404(b) character evidence, 609 convictions] the remedy is a limiting instruction, i.e. that the record can only be used for credibility and not propensity.
With a discovery or Brady violation the alternative remedy that you should request is a continuance.
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