Section 13.77 When Double Jeopardy Precludes Retrial

• Library: Criminal Practice 2012 Supp

F. (§13.77) When Double Jeopardy Precludes Retrial

Double jeopardy attaches when the jury is sworn or when the judge in a bench trial begins to hear evidence on the issue of guilt. Serfass v. United States, 420 U.S. 377 (1975); State v. Morton, 971 S.W.2d 335 (Mo. App. E.D. 1998); Durham v. State, 538 S.W.2d 881 (Mo. App. E.D. 1975). Double jeopardy does not attach when an indictment or information is dismissed before trial, and the defendant is subject to retrial. State v. Stein, 876 S.W.2d 623 (Mo. App. E.D. 1994).

If the prosecutor dismisses a case any time before trial, the state may refile it later without violating double jeopardy. State v. Pippenger, 741 S.W.2d 710, 712 (Mo. App. W.D. 1988). Double jeopardy does not bar retrial if the defendant moves for mistrial unless the defendant was provoked into doing so by the deliberate acts of the prosecutor or court. United States v. Poe, 713 F.2d 579 (10^th Cir. 1983), cert. denied, 466 U.S. 936 (1984); Or. v. Kennedy, 456 U.S. 667 (1982); State v. Walker, 130 S.W.3d 18 (Mo. App. E.D. 2004). Double jeopardy bars retrial if a mistrial is declared sua sponte by the court when there was no manifest necessity and the ends of justice did not require it. United States v. Jorn, 400 U.S. 470 (1971). A mistrial, even declared sua sponte, if entered because of...