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Accidentally showing prejudicial unredacted video requires a new trial

Derek W. Miller won in State v. Barnhart, No. 112,067 (Kan. App. Oct. 9, 2015)(unpublished), obtaining a new trial in a Ford County aggravated battery prosecution. On appeal, Mr. Barnhart argued that the publication of an unredacted video of a key witness required a new trial. The parties had agreed that several statements on the video were so prejudicial that they had to be redacted. But, in error, the unredacted video, including statements about Mr. Barhart's prior history with drugs and alcohol, prior violence, attendance at corrections, failed drug tests, and recent release from prison, was shown to the jury. The district court attempted to correct the oversight by a limiting instruction. But the COA held that the error required a new trial:

The unredacted statements on the video were not played for any legitimate purpose and, as the prosecutor admitted during oral argument, occurred because she was in a hurry and the error was hers. While we recognize the playing of the unredacted video was not intentional, that does not lessen the prejudicial impact it had on Barnhart's right to a fair trial. The video highlighted Barnhart's prior wrongful acts, and as such, these statements were extremely prejudicial.

The final step in determining whether the district court erred in not granting a mistrial is whether the improper statements affected the outcome of the trial. Here, the jury heard multiple highly prejudicial statements about Barnhart. The jury was also called upon to determine the credibility of the victim and the witnesses to decide whether to believe their initial version of the events or their recanted version. Once the jury heard the unredacted video, it was impossible for a limiting instruction to cure, especially when it failed to address all of the prejudicial issues the jury heard when the video was played. We cannot say the error was harmless, and we are not firmly convinced it did not affect the outcome of the trial. The party benefitting from the error always bears the burden of proving it harmless under this standard. The State has not convinced us the error was harmless. Once the video was exhibited and the bell was rung, we find the district court abused its discretion in not granting a mistrial sua sponte when the prosecutor inadvertently violated the agreement with Barnhart's attorney to only exhibit the redacted video to the jury.

[Update: the state did not file a PR and the mandate issued on December 18, 2015.]

Full post as published by Kansas Defenders on October 31, 2015 (boomark / email).