As before Vogt stated the reasons for his objection, Norton instantly asked the prosecutor: "Are you going to move for a mistrial?" Tribble pointed out that the charge had been described as a felony, and that the size of the jury – fourteen panelists, evenly divided between male and female – made it clear that the offense being considered was a felony, rather than a misdemeanor. Vogt protested that the instructions to the jury do not permit them to be informed of, or take into account, potential sentencing options, and contended that they likewise "cannot take into account the degree of the offense."

The Idaho Rules of Criminal Procedure do not address that question. Courtroom spectator A.J. Ellis, who recently served jury duty in neighboring Owyhee County, told The Free Thought Project that "during jury selection we were explicitly told that the case before us dealt with a misdemeanor offense." Several trial attorneys contacted for comment by The Free Thought Project in multiple states likewise reported that a mistrial on the grounds cited by Vogt at Norton's prompting struck them as a novelty.