Skip to comments.Supreme Court says double jeopardy does not protect against murder retrial
Posted on 05/24/2012 8:08:26 PM PDT by Olog-hai
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Things may vary by state, but I'm pretty certain that most if not all states require that a mistrial must meet certain conditions in order to permit a retrial. A friendly judge shouldn't grant a prosecutor a mistrial simply because his star witness's story was exposed as a lie (but might be 'cleaned up' enough to pass muster in a future trial). In scenario #44, the proper course of action would have been to send the jurors back to deliberate some more, and only declare a mistrial of further deliberations fail to yield consensus.
Fundamentally, a retrial can only be considered legitimate in cases and for charges where the jury at the original trial would not have acquitted the jury outright had they been allowed to do so. Of course, it will generally be impossible to know with certainty what the jury would have done, and in most cases the state should be given the benefit of the doubt. On the other hand, if the jurors go on the record as stating their desire to outright acquit the defendant on certain charges, and the judge declares a mistrial without allowing the jurors to do so, the judge's refusal to allow the jurors to make their verdict official should not justify a claim that the jury wouldn't be likely to acquit the defendant outright on those charges if allowed to do so.
I do not believe a judge could get away with declaring a mistrial under such a circumstance. Witnesses get caught lying every day. In any event, any competent defense attorney would shred a witness who was caught lying in a previous trial. No "clean up" in the world could save such a witness's testimony.
I don't think a judge could get away with being that blatant, but judges do have a lot of discretionary authority, and a "prosecution-friendly" judge might come up with some pretext to favor a mistrial.
As for the defense shredding the witness at the new trial, under what rules would testimony from a previous trial be admissible in the new one? If a witness claimed at the first trial to have seen the defendant do something in circumstances where the defense could prove he could not have, what would preclude the witness from simply inventing a new scenario where he saw the defendant?