Re-Prosecution After Mistrial

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any 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 be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The common law generally provided that jeopardy attached only after a judgment of conviction or acquittal. But the constitutional rule is that jeopardy attaches much earlier, in jury trials when the jury is sworn, and in trials before a judge without a jury, when the first evidence is presented.1 Therefore, if after jeopardy attaches the trial is terminated for some reason, it may be that a second trial, even if the termination was erroneous, is barred.2

The Supreme Court has justified this rule on the grounds that a defendant has a “valued right to have his trial completed by a particular tribunal.” 3 According to the Court, this right is rooted in a defendant’s interest in completing the trial “once and for all” and “conclud[ing] his confrontation with society,” 4 so as 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 of the evidence and of the nature of the defense.5 These reasons both inform the determination of when jeopardy attaches and the evaluation of the permissibility of retrial depending upon the reason for a trial’s premature termination.

A second trial may be permitted where a mistrial is the result of “manifest necessity” 6 —for example, when the jury cannot reach a verdict7 or circumstances plainly prevent the continuation of the trial.8 The question of whether there is double jeopardy becomes more difficult, however, with mistrials triggered by events within the prosecutor’s control, prosecutorial misconduct, or judicial error. In such cases, courts ordinarily balance the defendant’s right in having the trial completed against the public interest in fair trials.9

Thus, when a lower court granted a mistrial because of a defective indictment, the Supreme Court held that retrial was not barred. Instead, the Court explained in Illinois v. Somerville that a trial judge “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.10 The Court stated: “If an error could make reversal on appeal 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 be stripped of that success by an appellate court.” 11

On the other hand, in Downum v. United States, the Court held that a re-trial was not permissible when a prosecutor knew prior to jury selection that a key witness would be unavailable but later moved for a mistrial on the basis of that unavailability.12 Although Downum appeared to establish the principle that a prosecutorial or judicial error could never constitute a “manifest necessity” for terminating a trial, Illinois v. Somerville distinguished and limited Downum to situations in which the error lends itself to prosecutorial manipulation.13

Another kind of case arises when the prosecutor moves for mistrial because of prejudicial misconduct by the defense. In Arizona v. Washington,14 defense counsel made prejudicial comments about the prosecutor’s past conduct, and the prosecutor’s motion for a mistrial was granted over defendant’s objections. The Court ruled that retrial was not barred by double jeopardy. While the Court acknowledged that mistrial was not literally “necessary” because the trial judge could have given limiting instructions to the jury, it deferred to the trial judge’s determination that defense counsel’s comments had likely impaired the jury’s impartiality.15

The Supreme Court has considered the trial judge’s motivation when the trial judge has erred in exercising discretion to declare a mistrial sua sponte or a prosecutor’s motion. In Gori v. United States,16 the Court permitted a defendant’s retrial when the trial judge had, on his own motion and with no indication of the wishes of defense counsel, declared a mistrial because he thought the prosecutor’s line of questioning was intended to expose the defendant’s criminal record, which would have constituted prejudicial error. Although the Court thought that the judge’s action was an abuse of discretion, the Court approved retrial on the grounds that the judge had intended to benefit the defendant by his decision to declare a mistrial.17

The Court, however, reached the opposite conclusion in other cases. For example, in United States v. Jorn, the Court refused to permit retrial where the trial judge discharged the jury erroneously because he disbelieved the prosecutor’s assurance that certain witnesses had been properly apprised of their constitutional rights.18 The Court observed that the “doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option [to go to the first 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.” 19

Later cases appear to accept Jorn as an example of a case where the trial judge “acts irrationally or irresponsibly.” 20 But if the trial judge acts deliberately, giving prosecution and defense the opportunity to explain their positions, and according respect to defendant’s interest in concluding the matter before the one jury, then he is entitled to deference. This approach perhaps rehabilitates the result if not the reasoning in Gori and maintains the result and much of the reasoning of Jorn.21

In Jorn, the Supreme Court recognized that “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by a prosecutorial or judicial error.” 22 Similarly, in United States v. Scott, the Supreme Court noted that “Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” 23 In United States v. Dinitz,24 the trial judge had excluded defendant’s principal attorney for misbehavior and had then given defendant the option of recess while he appealed the exclusion, a mistrial, or continuation with an assistant defense counsel.

Holding that the defendant could be retried after he sought a mistrial, the Court reasoned that, although the exclusion might have been in error, it was not done in bad faith to goad the defendant into requesting a mistrial or to prejudice his prospects for acquittal.25 The Court explained that the defendant’s choice to terminate the trial and go on to a new trial should be respected. To hold otherwise would require defendants to shoulder the burden and anxiety of proceeding to a probable conviction followed by an appeal and possible re-trial.26

But 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.27 It is unclear what types of prosecutorial or judicial misconduct would constitute such overreaching.28 But in Oregon v. Kennedy,29 the Court adopted a narrow “intent” test, so that “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Therefore, ordinarily, a defendant who moves for or acquiesces in a mistrial is bound by his decision and may be required to stand for retrial.

On June 15, 2023, the Supreme Court decided Smith v. United States30 , a case involving whether the Double Jeopardy Clause prevents retrial of a defendant tried and convicted in an improper venue, or by a jury from the wrong district, in violation of the Constitution’s Venue and Vicinage Clauses, respectively.31 The Court distinguished between judicial decisions of improper venue and verdicts of acquittal, noting that the Court in earlier decisions recognized no protection from retrial when a trial terminates “on a basis unrelated to factual guilt or innocence of the offence of which [the defendant] is accused.” 32 Accordingly, the Court found that the Double Jeopardy clause did not bar retrial in a proper venue.

1: The rule traces back to United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824). See also Kepner v. United States, 195 U.S. 100 (1904); Downum v. United States, 372 U.S. 734 (1963) (trial terminated just after jury sworn but before any testimony taken). In Crist v. Bretz, 437 U.S. 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 (Powell, J., dissenting). An accused is not put in jeopardy by preliminary examination and discharge by the examining magistrate, Collins v. Loisel, 262 U.S. 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.S. 386, 391–92 (1908). A defendant may be tried after preliminary proceedings that present no risk of final conviction. E.g., Ludwig v. Massachusetts, 427 U.S. 618, 630–32 (1976) (conviction in prior summary proceeding does not foreclose trial in a court of general jurisdiction, where defendant has absolute right to demand a trial de novo and thus set aside the first conviction); Swisher v. Brady, 438 U.S. 204 (1978) (double jeopardy not violated by procedure under which masters hear evidence and make preliminary recommendations to juvenile court judge, who may confirm, modify, or remand).
2: Cf. United States v. Jorn, 400 U.S. 470 (1971); Downum v. United States, 372 U.S. 734 (1963). The Supreme Court has stated: “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 be 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 one, and only one, opportunity to require an accused to stand trial.” Arizona v. Washington, 434 U.S. 497, 503–05 (1978) (citations omitted).
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 v. Washington, 434 U.S. 497, 503–05 (1978); Crist v. Bretz, 437 U.S. 28, 35–36 (1978). See Peter Westen & Richard 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: United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824); Logan v. United States, 144 U.S. 263 (1892). See Renico v. 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). See also, Yeager v. United States, 557 U.S. 110, 118 (2009); Blueford v. Arkansas, 566 U.S. 599 (2012) (re-prosecution for a greater offense allowed following jury deadlock on a lesser included offense).
8: Simmons v. United States, 142 U.S. 148 (1891) (juror’s impartiality became questionable during trial); Thompson v. United States, 155 U.S. 271 (1884) (discovery during trial that one 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).
9: Illinois v. Somerville, 410 U.S. 458, 463 (1973).
10: Id. at 464.
11: Id.
12: Downum v. United States, 372 U.S. 734 (1963).
13: Somerville, 410 U.S. at 464–65, 468–69.
14: 434 U.S. 497 (1978).
15: Id. at 497.
16: 367 U.S. 364 (1961). See also United States v. Tateo, 377 U.S. 463 (1964) (re-prosecution permitted after the setting aside of a guilty plea found to be involuntary because of coercion by the trial judge).
17: Id.
18: United States v. Jorn, 400 U.S. 470, 483 (1971).
19: Id. at 485. The opinion of the Court was by a plurality of four, but two other Justices joined it after first arguing that jurisdiction was lacking to hear the government’s appeal.
20: Arizona v. Washington, 434 U.S. 497, 514 (1978).
21: Id. at 515–16. See also Illinois v. Somerville, 410 U.S. 458, 462, 465–66, 469–71 (1973) (discussing Gori and Jorn).
22: United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion).
23: United States v. Scott, 437 U.S. 82, 93 (1978).
24: 424 U.S. 600 (1976). See also Lee v. United States, 432 U.S. 23 (1977) (defendant’s motion to dismiss because the information was improperly drawn made after opening statement 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 before the same trial).
25: United States v. Dinitz, 424 U.S. 600 (1976).
26: Id. at 609.
27: Id. at 611.
28: Compare United States v. Dinitz, 424 U.S. 600, 611 (1976), with United States v. Tateo, 377 U.S. 463, 468 n.3 (1964).
29: 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 re-prosecution would be 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.
30: Smith v. United States, No. 21–1576 (U.S. June 15, 2023).
31: See generally U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. V; U.S. Const. amend. VI.
32: Smith, slip op. at 15 (citing United States v. Scott, 437 U.S. 82, 99 (1978) (alteration in original)).