When Can You Not Be Tried Again After a Mistrial

5th Amendment:

No person shall exist held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a 1000 Jury, except in cases arising in the country or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall whatsoever person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor exist deprived of life, liberty, or property, without due process of law; nor shall individual belongings be taken for public use, without but compensation.

The mutual constabulary by and large required that the previous trial must take ended in a judgment, of conviction or amortization, simply the constitutional rule is that jeopardy attaches much before, in jury trials when the jury is sworn, and in trials before a approximate without a jury, when the first show is presented.i Therefore, if subsequently jeopardy attaches the trial is terminated for some reason, it may exist that a 2d trial, fifty-fifty if the termination was erroneous, is barred.2 The reasons the Court has given for fixing the attachment of jeopardy at a bespeak prior to judgment and thus making some terminations of trials earlier judgment final insofar as the accused is concerned is that a accused has a "valued correct to accept his trial completed by a particular tribunal." 3 The reason that the defendant'southward right is and then "valued" is that he has a legitimate interest in completing the trial "once and for all" and "conclud[ing] his confrontation with society," 4 so every bit to be spared the expense and ordeal of repeated trials, the anxiety and insecurity of having to live with the possibility of conviction, and the possibility that the prosecution may strengthen its case with each try as it learns more than of the prove and of the nature of the defense force.five These reasons both inform the determination when jeopardy attaches and the evaluation of the permissibility of retrial depending upon the reason for a trial'southward premature termination.

A second trial may exist permitted where a mistrial is the effect of "manifest necessity," 6 every bit when, for example, the jury cannot reach a verdict7 ; Blueford v. Arkansas, 566 U.Southward. 599 (2012) (reprosecution for a greater crime immune following jury deadlock on a lesser included offense). or circumstances plainly foreclose the continuation of the trial.viii The question of whether at that place is double jeopardy becomes more than difficult, however, when the doctrine of "manifest necessity" is called upon to justify a second trial following a mistrial granted past the trial guess because of some outcome within the prosecutor's control or because of prosecutorial misconduct or because of error or abuse of discretion past the judge himself. There must ordinarily be a balancing of the defendant'due south right in having the trial completed against the public interest in fair trials designed to end in just judgments.9 Thus, when, subsequently jeopardy attached, a mistrial was granted because of a defective indictment, the Court held that retrial was not barred; a trial approximate "properly exercises his discretion" in cases in which an impartial verdict cannot be reached or in which a verdict on conviction would have to be reversed on appeal because of an obvious error. "If an error could brand reversal on entreatment a certainty, it would not serve 'the ends of public justice' to require that the government proceed with its proof when, if it succeeded before the jury, it would automatically exist stripped of that success by an appellate court." 10 On the other mitt, when, later on jeopardy attached, a prosecutor successfully moved for a mistrial because a key witness had inadvertently not been served and could not be found, the Court held a retrial barred, because the prosecutor knew prior to the selection and swearing of the jury that the witness was unavailable.11 Although this example appeared to plant the principle that an error of the prosecutor or of the approximate leading to a mistrial could not constitute a "manifest necessity" for terminating the trial, Somerville distinguished and limited Downum to situations in which the fault lends itself to prosecutorial manipulation, in being the sort of example that the prosecutor could use to arrest a trial that was not proceeding successfully and obtain a new trial that would exist to his reward.12

Another kind of case arises when the prosecutor moves for mistrial because of prejudicial misconduct by the defense force. In Arizona v. Washington ,13 defense counsel in his opening argument made prejudicial comments about the prosecutor'south past conduct, and the prosecutor's move for a mistrial was granted over defendant'due south objections. The Courtroom ruled that retrial was not barred by double jeopardy. Granting that in a strict, literal sense, mistrial was not "necessary" because the trial judge could have given limiting instructions to the jury, the Court held that the highest degree of respect should be given to the trial judge's evaluation of the likelihood of the impairment of the impartiality of i or more than jurors. Equally long equally support for a mistrial society can exist establish in the trial tape, no specific argument of "manifest necessity" need be made by the trial approximate.fourteen

Emphasis upon the trial judge's discretion has an impact upon the cases in which information technology is the judge's error, in granting sua sponte a mistrial or granting the prosecutor's motion. The cases are in doctrinal disarray. Thus, in Gori v. United States ,15 the Courtroom permitted retrial of the defendant when the trial judge had, on his own motion and with no indication of the wishes of defense counsel, declared a mistrial considering he thought the prosecutor's line of questioning was intended to expose the defendant'due south criminal tape, which would have constituted prejudicial error. Although the Courtroom thought that the judge'due south activity was an abuse of discretion, information technology approved retrial on the grounds that the judge'southward decision had been taken for defendant's benefit. This rationale was disapproved in the next example, in which the trial judge discharged the jury erroneously and in abuse of his discretion, considering he disbelieved the prosecutor's assurance that sure witnesses had been properly apprised of their constitutional rights.sixteen Refusing to permit retrial, the Courtroom observed that the "doctrine of manifest necessity stands every bit a control to trial judges non to foreclose the defendant'south option [to go to the commencement jury and perhaps obtain an acquittal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings." 17 The afterwards cases appear to accept Jorn as an instance of a case where the trial gauge "acts irrationally or irresponsibly." Just if the trial judge acts deliberately, giving prosecution and defence force the opportunity to explain their positions, and according respect to defendant's interest in terminal the matter before the ane jury, then he is entitled to deference. This approach perhaps rehabilitates the issue if not the reasoning in Gori and maintains the issue and much of the reasoning of Jorn .18

Of course, "a motion by the accused for mistrial is commonly causeless to remove any bulwark to reprosecution, even if the defendant's motion is necessitated by a prosecutorial or judicial error." nineteen "Such a motion by the defendant is deemed to exist a deliberate ballot on his part to forgo his valued correct to have his guilt or innocence adamant earlier the first trier of fact." xx In U.s.a. v. Dinitz ,21 the trial guess had excluded accused'southward master attorney for misbehavior and had then given accused the option of recess while he appealed the exclusion, a mistrial, or continuation with an banana defense counsel. Holding that the defendant could be retried after he chose a mistrial, the Court reasoned that, although the exclusion might take been in error, information technology was non washed in bad religion to goad the defendant into requesting a mistrial or to prejudice his prospects for acquittal. The defendant's pick, even though difficult, to terminate the trial and go on to a new trial should be respected and a new trial not barred. To hold otherwise would necessitate requiring the defendant to shoulder the burden and anxiety of proceeding to a probable conviction followed by an appeal, which if successful would atomic number 82 to a new trial, and neither the public interest nor the accused's interests would thereby be served.

Simply the Court has also reserved the possibility that the defendant's motion might be necessitated by prosecutorial or judicial overreaching motivated by bad faith or undertaken to harass or prejudice, and in those cases retrial would be barred. It was unclear what prosecutorial or judicial misconduct would constitute such overreaching,22 but, in Oregon 5. Kennedy ,23 the Courtroom adopted a narrow "intent" test, so that "[o]nly where the governmental deport in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a 2nd trial after having succeeded in aborting the starting time on his ain motility." Therefore, ordinarily, a accused who moves for or acquiesces in a mistrial is bound by his decision and may be required to represent retrial.

Footnotes

1

The dominion traces back to Us v. Perez, 22 U.S. (9 Wheat.) 579 (1824). See also Kepner five. U.s.a., 195 U.Southward. 100 (1904); Downum 5. United States, 372 U.S. 734 (1963) (trial terminated just afterward jury sworn but earlier whatever testimony taken). In Crist v. Bretz, 437 U.South. 28 (1978), the Court held this standard of the attachment of jeopardy was "at the core" of the clause and it therefore binds the States. But see id. at 40 (Justice Powell dissenting). An defendant is non put in jeopardy by preliminary test and discharge by the examining magistrate, Collins v. Loisel, 262 U.Southward. 426 (1923), by an indictment which is quashed, Taylor v. United States, 207 U.S. 120, 127 (1907), or by arraignment and pleading to the indictment. Bassing v. Cady, 208 U.Southward. 386, 391–92 (1908). A defendant may be tried afterward preliminary proceedings that present no risk of concluding conviction. E.k., Ludwig v. Massachusetts, 427 U.S. 618, 630–32 (1976) (conviction in prior summary proceeding does not foreclose trial in a court of full general jurisdiction, where defendant has absolute correct to demand a trial de novo and thus set bated the starting time conviction); Swisher v. Brady, 438 U.S. 204 (1978) (double jeopardy not violated past procedure nether which masters hear evidence and brand preliminary recommendations to juvenile courtroom estimate, who may confirm, modify, or remand).

2

Cf. United States v. Jorn, 400 U.S. 470 (1971); Downum 5. The states, 372 U.Southward. 734 (1963). "Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may exist convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to 1, and only one, opportunity to require an accused to stand up trial." Arizona v. Washington, 434 U.Due south. 497, 503–05 (1978).

3

Wade v. Hunter, 336 U.S. 684, 689 (1949).

4

United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality opinion).

5

Arizona five. Washington, 434 U.S. 497, 503–05 (1978); Crist 5. Bretz, 437 U.South. 28, 35–36 (1978). Meet Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 86–97.

6

United states v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).

7

U.s. 5. Perez, 22 U.Southward. (ix Wheat.) 579 (1824); Logan five. United States, 144 U.S. 263 (1892). Come across Renico 5. Lett, 559 U.S. 766 (2010) (in a habeas review case, discussing the broad deference given to trial judge's decision to declare a mistrial because of jury deadlock). Come across also, Yeager v. United states of america, 557 U.S. 110, 118 (2009); Blueford v. Arkansas, 566 U.S. 599 (2012) (reprosecution for a greater criminal offense allowed following jury deadlock on a lesser included crime).

8

Simmons v. U.s.a., 142 U.S. 148 (1891) (juror'due south impartiality became questionable during trial); Thompson v. United States, 155 U.Due south. 271 (1884) (discovery during trial that ane of the jurors had served on the grand jury that had indicted defendant and was therefore disqualified); Wade v. Hunter, 336 U.S. 684 (1949) (court-martial discharged because enemy advancing on site).

ix

Illinois v. Somerville, 410 U.South. 458, 463 (1973).

10

410 U.S. at 464 .

xi

Downum v. The states, 372 U.South. 734 (1963).

12

Illinois v. Somerville, 410 U.S. 458, 464–65, 468–69 (1973).

xiii

434 U.S. 497 (1978).

14

"Manifest necessity" characterizes the brunt the prosecutor must shoulder in justifying retrial. 434 U.South. at 505–06 . Just "necessity" cannot be interpreted literally; it means rather a "high degree" of necessity, and some instances, such as hung juries, easily meet that standard. Id. at 506–07. In a situation like that presented in this case, neat deference must be paid to the trial judge's decision because he was in the best position to decide the extent of the possible bias, having observed the jury's response, and to reply past the grade he deems best suited to bargain with it. Id. at 510–14. Here, "the trial gauge acted responsibly and deliberately, and accorded careful consideration to respondent'southward interest in having the trial concluded in a unmarried proceeding. . . . [H]e exercised 'sound discretion.' . . ." Id. at 516.

15

367 U.South. 364 (1961). Encounter too Usa v. Tateo, 377 U.Due south. 463 (1964) (reprosecution permitted after the setting aside of a guilty plea found to exist involuntary because of compulsion by the trial judge).

sixteen

United States v. Jorn, 400 U.Due south. 470, 483 (1971).

17

400 U.S. at 485 . The opinion of the Court was by a plurality of four, just ii other Justices joined it afterward commencement arguing that jurisdiction was lacking to hear the regime's entreatment.

eighteen

Arizona v. Washington, 434 U.S. 497, 514, 515–sixteen (1978). Come across also Illinois 5. Somerville, 410 U.S. 458, 462, 465–66, 469–71 (1973) (discussing Gori and Jorn.)

19

Us v. Jorn, 400 U.Southward. 470, 485 (1971) (plurality opinion).

20

United States five. Scott, 437 U.S. 82, 93 (1978).

21

424 U.S. 600 (1976). Run across as well Lee 5. United States, 432 U.S. 23 (1977) (defendant'southward move to dismiss because the information was improperly drawn fabricated after opening argument and renewed at close of evidence was functional equivalent of mistrial and when granted did not bar retrial, Court emphasizing that defendant by his timing brought about foreclosure of opportunity to stay earlier the aforementioned trial).

22

Compare Us v. Dinitz, 424 U.Southward. 600, 611 (1976), with U.s. 5. Tateo, 377 U.S. 463, 468 n.3 (1964).

23

456 U.S. 667, 676 (1982). The Court thought a broader standard requiring an evaluation of whether acts of the prosecutor or the judge prejudiced the defendant would be unmanageable and would be counterproductive because courts would be loath to grant motions for mistrials knowing that reprosecution would exist barred. Id. at 676–77. The defendant had moved for mistrial after the prosecutor had asked a key witness a prejudicial question. Four Justices concurred, noting that the question did not constitute overreaching or harassment and objecting both to the Court's reaching the broader issue and to its narrowing the exception. Id. at 681.

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Source: https://www.law.cornell.edu/constitution-conan/amendment-5/reprosecution-after-mistrial

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