Criminal Law

Retrials in Criminal Cases

By Janet Portman, Attorney
The U.S. Constitution’s protection against double jeopardy does not always bar a retrial. Learn when it does.

Most criminal cases never proceed all the way to trial, let alone go through a retrial. Instead, they’re resolved through plea bargains or dismissals. Of the relatively small number of cases that do go before a judge or jury, those that make the return trip tend to involve incidents of intense public interest or very serious crimes.

The U.S. Constitution, federal and state laws, and Supreme Court decisions have a lot to say about how, and under what circumstances, a criminal case may be retried. The discussion below gives you the basics.

The Rules on Retrials in Criminal Cases

Any attempted retrial in a criminal case must pass muster with none other than the U.S. Constitution’s provision that no person may “be subject for the same offence to be twice put in jeopardy of life or limb” (the Fifth Amendment). The most obvious application of this protection against “double jeopardy” prevents a state or the federal system from prosecuting people a second time after they have been acquitted for the same offense in that state or system. But the double jeopardy clause reaches further, dictating when a retrial of a criminal case may proceed.

Retrials in criminal cases come up in the following situations:

  • After the judge has declared a mistrial, which halts the trial mid-way, or
  • After an appellate court has reversed a conviction from the trial court.

The following sections explain the general rules that apply in each situation.

Retrials After a Mistrial: Hung Juries

Most of the time, the ban against double jeopardy will not apply after a judge has accepted that the jury is deadlocked (“hung”) and has declared a mistrial—the prosecutor can retry the defendant. Judges typically implore juries to “Go back and try again,” exhorting them to work together, to realize that another jury won’t necessarily do a better job, and to be patient, but often even that gentle encouragement doesn’t result in an acquittal or a guilty verdict. (“Gentle encouragement” is a relatively new approach—in years past and even in some modern courts, the order to get back to deliberations was called a “dynamite charge,” for obvious reasons.)

When the jury is “hopelessly deadlocked,” the judge will thank them for their work, excuse them, and set the case for a hearing, at which time the prosecution will announce whether it intends to try the case again. Often, the parties negotiate a plea deal, and sometimes the prosecutor dismisses the case.

Retrials After a Mistrial: Prosecutorial Misconduct

Although the majority of prosecutors abide by the rules of court and evidence, a handful push the envelope when it comes to courtroom behavior and tactics. The extreme cases make for exciting television drama, and (on screen at least) they often result in an exasperated demand from the defense for a mistrial. Even if granted—does it bar a retrial?

Most of the time, no. That’s because when the defense asks for a mistrial, it’s considered to have waived the protections against double jeopardy, even when the prosecutor has engaged in intentional misconduct. Though it may seem quite unfair, only extreme misbehavior on the part of the prosecutor (followed by a successful mistrial motion) will protect the defendant from another trial. Courts use the term “goading” to explain prosecutorial overreaching that effectively requires the defense to move for a mistrial. It’s a difficult standard to meet. (Oregon v. Kennedy, 456 U.S. 667 (1982).)

Retrials After a Mistrial: “Manifest Necessity”

Finally, judges sometimes declare a mistrial due to circumstances that have nothing to do with the inability of the jury to reach a decision or the prosecutor’s behavior. For example, if external circumstances resulted in too few jurors left to hear the case, a mistrial would be in order. In these situations, the ban against double jeopardy does not protect the defendant from a retrial.

Retrials After a Conviction

Defendants who appeal their convictions often entertain thoughts that a reversal will bar a retrial. Alas, such is rarely the case. (U.S. v. Ball, 163 U.S. 662 (1896).) For example, defendants who argue on appeal that evidence was admitted against them in violation of the Fourth Amendment, and who win a reversal of their conviction on that ground, normally face a second trial. (If the remaining evidence, however, is insufficient to sustain a conviction, the appellate court may direct the lower court to dismiss the case entirely, though this rarely happens.)

A very important exception to this rule, however, involves the argument on appeal that the evidence at trial was insufficient to support the guilty verdict. When an appellate court reverses based on the insufficiency of the evidence (that’s tantamount to saying, “No reasonable jury could have reached this verdict, given this evidence”), the prosecution cannot retry the defendant. In essence, under our legal system the prosecution has one shot at convicting, and is supposed to produce all available evidence. If the higher court says it’s not enough, the prosecution has lost its opportunity to secure a conviction.

Retrials and Sentencing

When criminal defendants are retried, they are not guaranteed the same (or less) sentence that they received after the first trial. The double jeopardy clause does insure that they be given credit for time served pursuant to the now-reversed conviction. And in death penalty cases, if the jury in the first trial recommended against death and the defendant secures a retrial, the double jeopardy clause usually bars the court from sentencing the defendant to death if the second trial results in a guilty verdict.

Questions for Your Attorney

  • I’ve been convicted and sentenced, and you’ve told me that my chances at a reversal on appeal are good. Will I be retried before the same judge? And given the nature of this case and the reputation of the judge, am I risking a heavier sentence if we win on appeal and I’m convicted again in a retrial?
  • How much “encouragement” must the judge give a jury who reports it can’t reach a decision? Must the jury be sent back over and over again? When can the judge call it quits?
  • My case garnered a lot of publicity, but I think I’m likely to get a sympathetic jury in state court. What are the chances that the U.S. Attorney will decide to charge me if I’m acquitted?
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