Amendment 5 — Re Prosecution After Mistrial

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Fifth Amendment :

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The common law generally provided that jeopardy attached only after a judgment of conviction or acquittal. But the constitutional rule is that jeopardy attaches much earlier, in jury trials when the jury is sworn, and in trials before a judge without a jury, when the first evidence is presented.[1](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn1amd5 " The rule traces back to United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824). See also Kepner v. United States, 195 U.S. 100 (1904); Downum v. United States, 372 U.S. 734 (1963) (trial terminated just after jury sworn but before any testimony taken). In Crist v. Bretz, 437 U.S. 28 (1978), the Court held this standard of the attachment of jeopardy was “at the core” of the Clause and it therefore binds the states. But see id. at 40 (Powell, J., dissenting). An accused is not put in jeopardy by preliminary examination and discharge by the examining magistrate, Collins v. Loisel, 262 U.S. 426 (1923), by an indictment which is quashed, Taylor v. United States, 207 U.S. 120, 127 (1907), or by arraignment and pleading to the indictment. Bassing v. Cady, 208 U.S. 386, 391–92 (1908). A defendant may be tried after preliminary proceedings that present no risk of final conviction. E.g., Ludwig v. Massachusetts, 427 U.S. 618, 630–32 (1976) (conviction in prior summary proceeding does not foreclose trial in a court of general jurisdiction, where defendant has absolute right to demand a trial de novo and thus set aside the first conviction); Swisher v. Brady, 438 U.S. 204 (1978) (double jeopardy not violated by procedure under which masters hear evidence and make preliminary recommendations to juvenile court judge, who may confirm, modify, or remand). ") Therefore, if after jeopardy attaches the trial is terminated for some reason, it may be that a second trial, even if the termination was erroneous, is barred.[2](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn2amd5 " Cf. United States v. Jorn, 400 U.S. 470 (1971); Downum v. United States, 372 U.S. 734 (1963). The Supreme Court has stated: “Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” Arizona v. Washington, 434 U.S. 497, 503–05 (1978) (citations omitted). ")

The Supreme Court has justified this rule on the grounds that a defendant has a “valued right to have his trial completed by a particular tribunal.” [3](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn3amd5 " Wade v. Hunter, 336 U.S. 684, 689 (1949). ") According to the Court, this right is rooted in a defendant’s interest in completing the trial “once and for all” and “conclud[ing] his confrontation with society,” [4](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn4amd5 " Jorn, 400 U.S. at 486 (plurality opinion). ") so as to be spared the expense and ordeal of repeated trials, the anxiety and insecurity of having to live with the possibility of conviction, and the possibility that the prosecution may strengthen its case with each try as it learns more of the evidence and of the nature of the defense.[5](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn5amd5 " Arizona, 434 U.S. at 503–05; Crist v. Bretz, 437 U.S. 28, 35–36 (1978). See Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 86–97. ") These reasons both inform the determination of when jeopardy attaches and the evaluation of the permissibility of retrial depending upon the reason for a trial’s premature termination.

A second trial may be permitted where a mistrial is the result of “manifest necessity” [6](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn6amd5 " United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). ") —for example, when the jury cannot reach a verdict[7](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn7amd5 " Perez, 22 U.S. (9 Wheat.) 579; Logan v. United States, 144 U.S. 263 (1892). See Renico v. Lett, 559 U.S. 766 (2010) (in a habeas review case, discussing the broad deference given to trial judge’s decision to declare a mistrial because of jury deadlock). See also, Yeager v. United States, 557 U.S. 110, 118 (2009); Blueford v. Arkansas, 566 U.S. 599 (2012) (re-prosecution for a greater offense allowed following jury deadlock on a lesser included offense). ") or circumstances plainly prevent the continuation of the trial.[8](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn8amd5 " Simmons v. United States, 142 U.S. 148 (1891) (juror’s impartiality became questionable during trial); Thompson v. United States, 155 U.S. 271 (1884) (discovery during trial that one of the jurors had served on the grand jury that had indicted defendant and was therefore disqualified); Wade, 336 U.S. 684 (court-martial discharged because enemy advancing on site). ") The question of whether there is double jeopardy becomes more difficult, however, with mistrials triggered by events within the prosecutor’s control, prosecutorial misconduct, or judicial error. In such cases, courts ordinarily balance the defendant’s right in having the trial completed against the public interest in fair trials.[9](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn9amd5 " Illinois v. Somerville, 410 U.S. 458, 463 (1973). ")

Thus, when a lower court granted a mistrial because of a defective indictment, the Supreme Court held that retrial was not barred. Instead, the Court explained in Illinois v. Somerville that a trial judge “properly exercises his discretion” in cases in which an impartial verdict cannot be reached or in which a verdict on conviction would have to be reversed on appeal because of an obvious error.[10](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn10amd5 " Id. at 464. ") The Court stated: “If an error could make reversal on appeal a certainty, it would not serve ‘the ends of public justice’ to require that the government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court.” [11](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn11amd5 " Id. ")

On the other hand, in Downum v. United States, the Court held that a re-trial was not permissible when a prosecutor knew prior to jury selection that a key witness would be unavailable but later moved for a mistrial on the basis of that unavailability.[12](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn12amd5 " Downum v. United States, 372 U.S. 734 (1963). ") Although Downum appeared to establish the principle that a prosecutorial or judicial error could never constitute a “manifest necessity” for terminating a trial, Illinois v. Somerville distinguished and limited Downum to situations in which the error lends itself to prosecutorial manipulation.[13](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn13amd5 " Somerville, 410 U.S. at 464–65, 468–69. ")

Another kind of case arises when the prosecutor moves for mistrial because of prejudicial misconduct by the defense. In Arizona v. Washington,[14](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn14amd5 " 434 U.S. 497 (1978). ") defense counsel made prejudicial comments about the prosecutor’s past conduct, and the prosecutor’s motion for a mistrial was granted over defendant’s objections. The Court ruled that retrial was not barred by double jeopardy. While the Court acknowledged that mistrial was not literally “necessary” because the trial judge could have given limiting instructions to the jury, it deferred to the trial judge’s determination that defense counsel’s comments had likely impaired the jury’s impartiality.[15](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn15amd5 " Id. at 497. ")

The Supreme Court has considered the trial judge’s motivation when the trial judge has erred in exercising discretion to declare a mistrial sua sponte or a prosecutor’s motion. In Gori v. United States,[16](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn16amd5 " 367 U.S. 364 (1961). See also United States v. Tateo, 377 U.S. 463 (1964) (re-prosecution permitted after the setting aside of a guilty plea found to be involuntary because of coercion by the trial judge). ") the Court permitted a defendant’s retrial when the trial judge had, on his own motion and with no indication of the wishes of defense counsel, declared a mistrial because he thought the prosecutor’s line of questioning was intended to expose the defendant’s criminal record, which would have constituted prejudicial error. Although the Court thought that the judge’s action was an abuse of discretion, the Court approved retrial on the grounds that the judge had intended to benefit the defendant by his decision to declare a mistrial.[17](https://www.law.cornell.edu/constitution-conan/amendment-5/re-prosecution-after-mistrial#fn17amd5 " Id. ")

The Court, however, reached the opposite conclusion in other cases. For example, in United States v. Jorn, the Court refused to permit retrial where the trial judge discharged the jury erroneously because he disbelieved the prosecutor’s assurance that certain witnesses had been properly apprised of their constitutional righ