BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 5 - Special Trial Problems

    5.05 Criminal Defendant's Motion For Mistrial (FRCP 26.3)

        5.05.1 Criminal Defendant's Motion For Mistrial: General Guidelines
        5.05.2 Criminal Defendant's Motion For Mistrial: Multidefendant Cases
        5.05.3 Criminal Defendant's Motion For Mistrial: Other Sources

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

5.05.1 Criminal Defendant's Motion For Mistrial: General Guidelines

When a criminal defendant moves for a mistrial, the general rule is that retrial is not barred by double jeopardy concerns. See United States v. Scott, 437 U.S. 82, 93–94 (1978). However, there is one important exception to this rule: Retrial is barred if the motion was provoked by intentional government misconduct.

Only 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 successfully aborted the first on his own motion.

Oregon v. Kennedy, 456 U.S. 667, 676 (1982).

The court must find that the intent of the government was to deliberately provoke a mistrial, not merely that the conduct was harassing or in bad faith.

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.

Id. at 675–76.

Note that mistake or carelessness is not sufficient to support a double jeopardy claim. See, e.g., United States v. Johnson, 55 F.3d 976, 978 (4th Cir. 1995); United States v. Powell, 982 F.2d 1422, 1429 (10th Cir. 1992), cert. denied, 508 U.S. 917 (1993). Nor is "[n]egligence, even if gross." United States v. Huang, 960 F.2d 1128, 1133 (2d Cir. 1992). Even a deliberate improper act that causes a mistrial does not prevent retrial if it was not intended to provoke a mistrial. United States v. White, 914 F.2d 747, 752 (6th Cir. 1990) (although prosecutor deliberately attempted to elicit from witness evidence that court had ruled inadmissible, court found that conduct was motivated by "prosecutorial inexperience").

If the defendant moves for a mistrial with jeopardy attached on the specific ground of prosecutorial misconduct, the court should not deny a mistrial on that ground and then declare a mistrial without prejudice over the defendant’s objection unless the defendant consents or there is "manifest necessity" for a mistrial. See Weston v. Kernan, 50 F.3d 633, 636–38 (9th Cir.), cert. denied, 116 S. Ct. 351 (1995). See also Corey v. District Court of Vermont, Unit #1, Rutland Circuit, 917 F.2d 88, 90–92 (2d Cir. 1990) (retrial prohibited where the defendant consented to mistrial only if jeopardy attached but court declared mistrial without prejudice).

Before a court may order a mistrial, FRCP 26.3 requires it to "give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives."

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

5.05.2 Criminal Defendant's Motion For Mistrial: Multidefendant Cases

If only one or some of the defendants in a multidefendant case move successfully for mistrial, the court should give the other defendants an opportunity to object. Unless the nonmoving defendants join the motion or acquiesce to the decision, [Footnote 1] the court should sever their cases or must find that there are grounds to declare a mistrial for those defendants, too. See, e.g., White, 914 F.2d at 753–55 (conviction must be vacated on double jeopardy grounds where the defendant did not have sufficient opportunity to object to other defendant’s mistrial motion at initial trial, the record did not indicate he joined the motion or otherwise consented to mistrial, and "there was no manifest necessity for declaring a mistrial in regard to him").

Courts should be particularly careful in multidefendant cases where some defendants would agree to a mistrial with prejudice but would object to mistrial without prejudice. See, e.g., United States v. Huang, 960 F.2d 1128, 1134–36 (2d Cir. 1992) (where all four defendants moved for mistrial, but two specifically moved for mistrial with prejudice and objected to granting of mistrial without prejudice, double jeopardy prevented retrial because there was no manifest necessity to declare mistrial rather than sever the cases and proceed with original trial for them).

FOOTNOTES:

Footnote 1:    If the defendant has a reasonable opportunity to object to the granting of a mistrial but does not, consent to the mistrial may be implied. See, e.g., United States v. DiPietro, 936 F.2d 6, 10–11 (1st Cir. 1991).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

5.05.3 Criminal Defendant's Motion For Mistrial: Other Sources

Other FJC sources

Donald S. Voorhees, Manual on Recurring Problems in Criminal Trials 161–64 (5th ed. 2001)