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64. Would the second trial violate the prohibition against double jeopardy?
The defendant has objected to the second trial on double jeopardy grounds.
A new jury was impaneled the next day before a second judge.
Four hours into a defendant's assault trial, the lawyers gathered in the judge's chambers to discuss an evidentiary issue. While there, the judge received a phone call from his wife telling him that her mother had suddenly died. Without asking the lawyers what they wanted to do, the judge brought the lawyers back into the courtroom, declared a mistrial, excused the jury, and rushed home to his wife.
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An exception to double jeopardy exists if there is a manifest necessity for a mistrial. United States v. Perez, 22 U.S. 579 (1824). Examples of manifest necessity include a hung jury or misconduct by the defendant.
D is correct. In this case, jeopardy had attached because the jury was empaneled and sworn in. The death of the judge's wife's mother does not amount to a manifest necessity to abort the original trial. Thus, no exception applies and a second trial would violate the prohibition against double jeopardy.
A is incorrect. Acting in good faith is not a proper standard for determining whether a mistrial would violate double jeopardy. The mistrial must have been for a manifest necessity under the exception established by Perez. Here, not only did the judge not act in good faith, but the mistrial was also not for a manifest necessity. Therefore, the defendant cannot be tried a second time.
B is incorrect. Jeopardy attaches during a jury trial at the empaneling and swearing of the jury, not at the returning of a verdict. Subsequently, it does not matter that a verdict was not entered here. Because jeopardy attached at the swearing of the jury and no other exception exists based on these facts, the defendant may not be tried twice without violating double jeopardy.
C is incorrect. It is true that retrying the defendant would violate double jeopardy, but not on this basis. The rule is that jeopardy attaches upon the empaneling and swearing of the jury, despite whether the subsequent judge's evidentiary rulings would be inconsistent with those of the first judge. The proper conclusion rests on the absence of a manifest necessity for the mistrial, as explained above.