By Collin County Criminal Defense Lawyer Jeremy Rosenthal
A mistrial is a declaration the judge makes to immediately halt and end a trial in progress. Normally a mistrial is declared when a circumstance arises that taints the process beyond repair. In certain situations, a mistrial can also result in an acquittal of a criminal defendant due to the concept of double jeopardy, but most merely result in the case being reset to a new trial status as if the mistrial had never taken place.
The circumstances which could cause a mistrial are seemingly endless. More common reasons for mistrials are hung juries (meaning the jury couldn’t decide a case unanimously after a lengthy deliberation), or what is known as a “busted panel” which means after jury selection there were not enough qualified jurors to form a complete jury. Other common reasons are improper arguments by a party, unexpected or improper comments from a witness, and on some occasions juror misconduct.
A judge has wide discretion to declare a mistrial if there is a “manifest necessity” to declare a mistrial. Mistrials can be granted sua sponte (the judge declaring the mistrial without either party asking for it), or by either of the parties.
It is legally complex in situations where the Defendant requests a mistrial based on a prosecutor’s conduct during the trial as to whether double-jeopardy will bar retrial. This is because, as a general rule, courts consider requesting a mistrial as a waiver of double-jeopardy.
The standard today for whether a mistrial requested by the defense should also cause a double-jeopardy bar is from the U.S. Supreme Court case of Oregon v. Kennedy, 456 U.S. 667 (1982) which holds that where the prosecutor baits or goads the defense into requesting a mistrial — then the defendant doesn’t waive double jeopardy by requesting a mistrial.
The easiest way to think about a mistrial triggering a double jeopardy dismissal is like an intentional foul in a basketball game. One team has the ball and has a clear path to the basket. In order to prevent an easy basket or layup, the other team fouls. A prosecutor, thinking they have lost the case, makes a flagrant comment, asks an inappropriate question, or takes some other action to force defendant to request a mistrial so they can have another shot at prosecuting the defendant. Courts in this situation can end the trial right there and bar the state from re-prosecution (essentially acquitting the accused).
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation, you should contact an attorney directly. Posts made to this blog and/or communications sent through this forum are not confidential nor subject to the attorney client privilege. Contacting the author through this forum does not create an attorney-client relationship.