Criminal Law

Trial and Try again: When is a Retrial a Good Idea?

Many people assume that once a trial is over, the case is done once and for all. However, sometimes cases can be retried.

Reasons for re-trial include attorney misconduct or mistrial in the original trial, or an error which made the trial unfair. How a second trial turns out can't be predicted with certainty.

No Retrials for Pennsylvania Youths

A scandal came to light last year in Pennsylvania when two judges pleaded guilty to taking part in a kickback scheme. For several years, minors charged with minor offenses and no prior records were given harsh sentences including extended stays in youth detention centers. One of the judges was charged with accepting millions of dollars in kickbacks from the private detention centers.

Once the scandal broke, the Pennsylvania Supreme Court threw out the thousands of cases handled by the two judges because they were tainted by corruption.

The state's highest court declared the 50 cases involving children still under court supervision could be retried if the prosecutor chose to do so. Originally, prosecutors said they would retry all 50 cases.

Several months later, prosecutors changed their plans. They decided not to retry the cases after all. The district attorney explained that this was the right decision to make in the interest of fairness and justice.

Retrials in Criminal Cases

In some situations a criminal case is ordered to be retried. This might happen if the jury is deadlocked, meaning they can't come to a unanimous agreement of guilty or not guilty. Or there may have been some error in the trial such as witness tampering, and it's so serious a mistrial is declared; another trial follows later.

The prosecutor weighs whether a retrial is feasible. For example, key witnesses will have to be found and delivered a new subpoena, a written paper commanding a person to testify at the trial on a certain date, place and time.

A basic principle of fairness in our justice system is that no one should face double jeopardy, meaning no one should be subject to punishment twice for the same crime. If a person is found not guilty after a trial, the prosecutor doesn't usually get a second chance to have another trial.

A retrial is only granted if there were serious errors in the original trial requiring a reversal of the verdict, and the court finds that a new trial should take place.

Retrials in Civil Cases

Civil cases are those which don't involve criminal charges. Retrials of civil cases could happen if the jury reaches a deadlock and a mistrial is declared, or if a higher court concludes that serious errors made the trial unfair.

The second trial is never an exact repeat of the first trial. A new jury will be selected, a different judge might preside, and the lawyers for both sides might be different than the lawyers in the first trial. Witnesses could die or become ill, be impossible to locate, or refuse to give testimony.

If you have received a subpoena to give testimony at a trial or at a deposition, or if you have received a notice to report for jury duty, it's essential that you're present. It's worth it to make a phone call or write a letter to the attorney or court official named on the subpoena if it's impossible or very difficult for you to be present.

An Appeal or Retrial?

If you lose a civil or criminal case, you have the choice to appeal to a higher court. This is different from a retrial, where the choice is the prosecutor's, not yours. And you would be retried in the same court, rather than a higher court.

Questions for Your Attorney

  • I was found not guilty in the first trial against me. Can prosecutors retry my case?
  • If I think that a serious error was made at my trial, can I ask the court for a retrial?

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