Manifest Necessity


III. Manifest necessity

A mistrial may occur for a variety of reasons and may occur at the request of the defendant or over the defendant's objection. See Illinois v. Somerville, 410 U.S. 458, 471 (1973); Jorn, 400 U.S. at 487. Once jeopardy attaches, if the case is terminated, before conclusion, as a result of the trial court granting a motion for a mistrial, the defendant may be re-tried, but only if there was "manifest necessity" for the mistrial. See Perez, 22 U.S. at 580.

In Cornish, 272 Md. 312, the Court of Appeals stated: "The most significant guideline for the exercise of a trial court's discretion is that a mistrial is to be declared only where it is 'manifestly necessary,' or 'under urgent circumstances,' or 'only in extraordinary and striking circumstances,' and declaring a mistrial is not 'to be lightly undertaken.'" Id. at 318 (internal citations omitted).

A. What caused the mistrial and why?

1. Mistrial granted at the defendant's request or acquiescence and the State did not try to provoke a mistrial

If the defendant requests a mistrial or consents to a mistrial, and it is not because the State attempted to provoke a mistrial, the defendant waives the prohibition against double jeopardy and implicitly requests to be retried properly. In Scott, 437 U.S. 82, the Supreme Court stated:

[T]he Defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no cognizable injury under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the Defendant . . . Rather, we conclude that the Double Jeopardy Clause, which guards against Government oppression, does not relieve a Defendant from the consequences of his voluntary choice.

Id. at 98-99. "Manifest necessity" includes a mistrial when the State is at fault and when the State is not at fault, e.g., the judge becomes ill. If a mistrial is granted because of prosecutorial error, with the State improperly trying to "win," there is manifest necessity to grant the mistrial, and the case may be re-tried. Similarly, if the mistrial was caused by the State's negligence or gross negligence, that does not preclude a re-trial if the State was improperly trying to "win" and not trying to provoke a mistrial. Lee v. United States, 432 U.S. 23, 32 (1977); Somerville, 410 U.S. at 465.

2. Mistrial granted at the defendant's request or acquiescence and the State tried to provoke a mistrial

If the defendant requests a mistrial or consents to a mistrial, following an attempt by the State to provoke a mistrial, the defendant does not waive the prohibition against double jeopardy. The defendant cannot be retried, even though there was a manifest necessity for granting the mistrial, when the mistrial was in response to deliberate overreaching by the State in an attempt to obtain a second trial. Oregon v. Kennedy, 456 U.S. 667, 678 (1982).

Thus, if the mistrial is granted because the State was improperly and intentionally trying to "bail out" of the case, because the State did not like the developments in the case, and provokes a mistrial, double jeopardy precludes a re-trial. However, in Nicholson v. State, 157 Md. App. 304 (2004), the Court of Special Appeals held that jeopardy did not attach when the defendant withdrew his guilty plea because of prosecutorial misconduct, because "the misbehavior of the prosecutor was [not] designed to provoke or goad the defendant into moving for a mistrial." Id. at 315-16.

3. Trial court sua sponte declares a mistrial over the defendant's objection

If the trial court determines that the ends of public justice cannot be attained in the current trial, the court may declare a mistrial, either without the defendant's consent or over the defendant's objection. Somerville, 410 U.S. at 464. In Gori v. United States, 367 U.S. 364 (1961), the Supreme Court...

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