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 required that the previous trial must have ended in 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 reasons the Court has given for fixing the attachment of jeopardy at a point prior to judgment and thus making some terminations of trials before judgment final insofar as the defendant is concerned is that a defendant has a
valued right to have his trial completed by a particular tribunal. 3 The reason that the defendant’s right is so
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 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 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 as when, for example, the jury cannot reach a verdict 7 or circumstances plainly prevent the continuation of the trial. 8 The question of whether there is double jeopardy becomes more difficult, however, when the doctrine of
manifest necessity is called upon to justify a second trial following a mistrial granted by the trial judge because of some event within the prosecutor’s control or because of prosecutorial misconduct or because of error or abuse of discretion by the judge himself. There must ordinarily be a balancing of the defendant’s right in having the trial completed against the public interest in fair trials designed to end in just judgments. 9 Thus, when, after jeopardy attached, a mistrial was granted because of a defective indictment, the Court held that retrial was not barred; 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.
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. 10 On the other hand, when, after 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 case appeared to establish the principle that an error of the prosecutor or of the judge leading to a mistrial could not constitute a
manifest necessity for terminating the trial, Somerville distinguished and limited Downum to situations in which the error lends itself to prosecutorial manipulation, in being the sort of instance that the prosecutor could use to abort a trial that was not proceeding successfully and obtain a new trial that would be to his advantage. 12
Another kind of case arises when the prosecutor moves for mistrial because of prejudicial misconduct by the defense. In Arizona v. Washington, 13 defense counsel in his opening statement 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. 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 one or more jurors. As long as support for a mistrial order can be found in the trial record, no specific statement of
manifest necessity need be made by the trial judge. 14
Emphasis upon the trial judge’s discretion has an impact upon the cases in which it 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 Court 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 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, it approved retrial on the grounds that the judge’s decision had been taken for defendant’s benefit. This rationale was disapproved in the next case, in which the trial judge discharged the jury erroneously and in abuse of his discretion, because he disbelieved the prosecutor’s assurance that certain witnesses had been properly apprised of their constitutional rights. 16 Refusing to permit retrial, 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. 17 The later cases appear to accept Jorn as an example of a case where the trial judge
acts irrationally or irresponsibly. 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. 18
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. 19
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. 20 In United States v. Dinitz, 21 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 chose 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. The defendant’s choice, 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 lead to a new trial, and neither the public interest nor the defendant’s interests would thereby be served.
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. It was unclear what prosecutorial or judicial misconduct would constitute such overreaching, 22 but, in Oregon v. Kennedy, 23 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.