Mistrials are trials that are not successfully completed. A mistrial may become necessary when something occurs that greatly affects the fundamental fairness of the trial. The most common source of a mistrial is the failure of the jury to return a unanimous verdict (a hung jury). Another example is when an attorney or a witness makes prejudicial statements that can't be corrected even by telling the jurors to disregard the statements. Serious misconduct by a party will also warrant a mistrial. A rising source of mistrials is when jurors are caught researching their case on the internet.

Effect of a Mistrial on Double Jeopardy

Most people have heard the old saying that a person can't be convicted twice for the same crime. The Double Jeopardy Clause prevents the government from putting a defendant in jeopardy twice for the same crime. If a mistrial is declared, the government can make another attempt to convict the defendant if there was a manifest necessity for declaring a mistrial. For example, if the reason for the mistrial was a hung jury, then the necessity for the mistrial was low and a retrial will most likely not be allowed. On the other hand, if the reason for the mistrial was so that the government could gather more evidence, then a retrial most likely won't be barred. Of course, if the defendant requests or consents to the mistrial, then that is considered a waiver of double jeopardy protection.

Mistrial Procedure

Before ordering a mistrial, the court must give the parties a chance to comment on whether a mistrial is the best course of action. The parties are also allowed to state whether they consent or object and to suggest any alternatives. This helps to ensure that mistrials will only be granted when necessary. The reason to allow the parties an opportunity to comment is to avoid prejudice to the parties. The government may want to avoid a mistrial because a retrial may be precluded on double jeopardy grounds. On the other hand, a defendant who doesn't want a mistrial is entitled to an opportunity to persuade the court to not grant one.

The rule requiring the parties to state whether they object or consent to the mistrial is critical because it eliminates the need to consider whether the mistrial is a manifest necessity. Naturally, if the defendant consents, then the government will be allowed to retry the case. If one or both parties object, then that tells the court that a mistrial may not be necessary.

The third part of the rule requires the court to find that there are no reasonable alternatives. If there is a reasonable alternative, then clearly there is a not a manifest necessity for a mistrial. This part of the rule helps to ensure that a mistrial is declared only as a remedy of last resort.

Questions for Your Attorney

  • Will a mistrial be allowed if the prosecutor seeks it only after realizing that the state's case is weak?
  • What happens if the prosecutor creates the situation that gives rise to the mistrial?
  • If a mistrial is declared, what determines whether a retrial is barred?

Tagged as: Criminal Law, criminal law trials, mistrial motion, criminal lawyer