MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
Go to Federal Manuals Table of Contents - Go to Recurring Problems Table of Contents

Part VIII. Verdict

        Part VIII(D)  Mistrial

        Part VIII(D)    Mistrial: General Principals
        Part VIII(D)1  Court Has Power To Declare Mistrial
        Part VIII(D)2  Mistrial To Be Avoided If Possible
        Part VIII(D)3  Alternative Courses Of Action Must Be Considered
        Part VIII(D)4  Declaring Mistrial Because Of Deadlocked Jury
        Part VIII(D)5  Improvident Declaration Of Mistrial

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Although a court has the power to declare a mistrial, that power must be exercised with extreme caution in a criminal prosecution. If a mistrial is improvidently declared, the bar of double jeopardy may prevent the retrial of the defendant.

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

It is within the discretion of the trial court to declare a mistrial even over the defendant's objection if the court determines that facts and circumstances within or without the courtroom preclude the possibility of a fair trial either for the defendant or for the government.

United States v. Riebold, 557 F.2d 697 (10th Cir. 1977)    

A mistrial is not to be declared unless (1) there is "manifest necessity" for termination of the proceedings, or (2) "the ends of public justice" would otherwise be defeated.

Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978)
United States v. Malekzadeh, 855 F.2d 1492 (11th Cir. 1988)

A Batson violation cannot create manifest necessity to declare a mistrial.

United States v. Sammaripa, 55 F.3d 433 (9th Cir. 1995)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

The power of the courts to declare a mistrial must be exercised with the greatest caution, under urgent circumstances, and for very plain and obvious causes.

Arizona v. Washington, 434 U.S. 497 (1978)

Declaration of a mistrial is to be avoided if possible.

United States v. Anderson, 509 F.2d 312 (D.C. Cir. 1974)

The trial judge should not foreclose the defendant's right to take his or her case to the original jury until a scrupulous exercise of Judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.

United States v. Jorn, 400 U.S. 470 (1971)

Before granting a mistrial the court should always consider whether the giving of a curative instruction or some less drastic alternative is appropriate.

United States v. Martin, 756 F.2d 323 (4th Cir. 1985)
United States v. McClellan, 868 F.2d 210 (7th Cir. 1989)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Before declaring a mistrial, a trial judge must consider all the procedural alternatives to a mistrial, and, after finding none of them to be adequate, make a finding of manifest necessity for the declaration of a mistrial.

Arizona v. Washington, 434 U.S. 497 (1978)

FRCRP 26.3 requires a court to provide an opportunity for all parties to comment on the propriety of an order of mistrial, including whether each party consents or objects to a mistrial, and to suggest other alternatives.

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

If the jury reports that it is deadlocked, the trial judge must determine whether there is a probability that the jury can reach a verdict within a reasonable time. The judge should question the jury, either individually or through its foreperson, on the possibility that its deadlock could be overcome by further deliberations.

United States v. See, 505 F.2d 845 (9th Cir. 1974)
United States v. Byrski, 854 F.2d 955 (7th Cir. 1988)

Merely questioning the jury foreperson may not be sufficient, but questioning the foreperson individually and the jury either individually or as a group is satisfactory.

Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978)

The Sixth Circuit has suggested that the trial judge should ask not only the foreperson but also the individual jurors whether they feel that there is any prospect of the jury reaching a verdict.

United States v. Larry, 536 F.2d 1149 (6th Cir. 1976)

Before declaring a mistrial, the judge should inquire whether the jury has reached a partial verdict as to any defendant as to any count.

United States v. MacQueen, 596 F.2d 76 (2d Cir. 1979)

Whether the court has properly exercised its discretion to declare a mistrial because of a deadlocked jury depends on the following factors: (1) a timely objection by the defendant; (2) the jurors' collective opinion that they cannot agree; (3) the length of the deliberations; (4) the length of the trial; (5) the complexity of the issues presented to the jury; (6) any prior communications that the judge has had with the jury; (7) the effects of possible exhaustion; and (8) the impact that the coercion of further deliberations might have on the jury.

Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978)
In re Ford, 987 F.2d 334 (6th Cir. 1992)
United States v. Carraway, 108 F.3d 745 (7th Cir. 1997)

See Part II(C) 20 [Jury-Related Problems: Deadlocked Jury].

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Improvident declaration of a mistrial may bar retrial or may compel the release on double jeopardy grounds of a defendant convicted at a second trial.

Dunkerley v. Hogan, 579 F.2d 141 (2d Cir. 1978)
United States v. Pierce, 593 F.2d 415 (1st Cir. 1979)
Harris v. Young, 607 F.2d 1081 (4th Cir. 1979)
Grandberry v. Bonnier, 653 F.2d 1010 (5th Cir. 1981)
United States v. Bridewell, 664 F.2d 1050 (6th Cir. 1981)
United States v. Sloan, 36 F.3d 386 (4th Cir. 1994)

The Double Jeopardy Clause does not ordinarily bar the retrial of defendants who themselves ask the court to declare a mistrial.

Oregon v. Kennedy, 456 U.S. 667 (1982)
United States v. Larouche Campaign, 866 F.2d 512 (1st Cir. 1989)
United States v. Weeks, 870 F.2d 267 (5th Cir. 1989)
United States v. Johnson, 55 F.3d 976 (4th Cir. 1995)

A motion for a mistrial made by the defendant normally serves to remove any barrier to reprosecution, but such is not the case when the prosecutor has, through bad faith or overreaching, "goaded" the defendant into requesting a mistrial.

Oregon v. Kennedy, 456 U.S. 667 (1982)
United States v. Roberts, 640 F.2d 225 (9th Cir. 1981)
United States v. Byrski, 854 F.2d 955 (7th Cir. 1988)
United States v. Johnson, 55 F.3d 976 (4th Cir. 1995)

If the defendant's motion for a mistrial is denied, and a mistrial is later declared on different grounds, the defendant is not deemed to have consented to the mistrial.

Lovinger v. Circuit Court of 19th Judicial Circuit, 845 F.2d 739 (7th Cir. 1988)
United States v. Byrski, 854 F.2d 955 (7th Cir. 1988)