What Factors Lead to Retrial of a Criminal Case?

Case Retried

In the United States, most criminal cases never see the inside of a courtroom. Those that do proceed that far tend to involve crimes of the greatest severity. However, for cases that do end up in court, retrial is occasionally possible.

While the Fifth Amendment’s double jeopardy clause protects a defendant against being tried twice for the same offense, this protection does not kick in immediately. No one will enjoy its benefits immediately following arrest or even after the prosecutor has filed charges. On the other hand, double jeopardy will apply after:

  • The jurors in a jury trial have taken the oath.
  • The registrar in a bench trial swears in the first witness.
  • The judge in either type of trial has accepted a guilty plea.

What happens, though, in cases where none of these conditions play a role? Does the defendant lose double jeopardy protection?

The Factors Permitting a Criminal Retrial

Prior to the jury empanelment, the swearing-in of the first witness or the court’s acceptance of a guilty plea, there are certain conditions under which nothing protects the defendant against the threat of retrial. This can happen when:

  • The prosecution loses a pretrial hearing and opts to dismiss the case.
  • The judge declares a mistrial and quashes the court proceeding.
  • An appellate court reverses the original conviction.

If the prosecutor chooses to drop the case before it goes to trial, the defendant is not yet out of the woods since double jeopardy will not have attached. In the case of a mistrial or overturned conviction, however, double jeopardy protections will either exist or not according to the following set of rules.

Retrial After a Mistrial

Although the jury may already be empaneled or at least one witness sworn, the double jeopardy protection will disappear if a mistrial resulted from:

  • A deadlocked jury. When the jurors can’t come to a clear consensus, costly retrials are the usual outcome. Despite all efforts to avoid this scenario, the judge may have no choice but to thank the jury for its time and schedule another hearing. The prosecution must now decide whether to try the case again, negotiate a plea deal or dismiss the charges entirely.
  • Prosecutorial misconduct. Although most prosecutors do their best to play by the rules, some can get carried away. If their behavior becomes too extreme, the defense may demand a mistrial, thereby waiving double jeopardy protections. The judge may grant the mistrial request, but unless the prosecution’s behavior was extreme to the point of goading, it won’t protect the defendant from the peril of retrial.
  • Manifest necessity. If the circumstances by which the judge declares a mistrial involve anything other than a hung jury or a misbehaving prosecutor, the defendant is still far from home free. Despite anything that may have gone before, this is another case in which double jeopardy protections do not apply.

Retrial After a Conviction

Defendants who appeal their cases are likely to believe that if the appellate court overturns their prior conviction, they will walk away free and clear. Unfortunately, even if they can prove that the admission of evidence against them in the prior trial violated the terms of the Fourth Amendment, they are still open to the possibility of retrial unless the evidence that remains is insufficient to convict them.

However, there is one important distinction. If the appellate court should find that the entirety of the earlier evidence against the defendant is insufficient to uphold the prior conviction, the concept of double jeopardy may very well apply.

Defendant Protections During Retrial

A defendant may be unable to sidestep a retrial, but if the subsequent go-round should end in another conviction, double jeopardy protections may still provide some benefit. For example, while a retrial does not guarantee a sentence of lesser or even equal severity, the double jeopardy clause does grant credit for time already served. Furthermore, in death penalty cases, the retrial court cannot sentence the defendant to execution if the jury in the first trial recommended against it.

In any case, those who fear a retrial may be relieved to know that in the interests of saving time and money, prosecutors at the state and federal levels will normally make every attempt to get the job done the first time. For this reason, unless the crime of which the defendant stands accused is particularly heinous or high-profile, he or she will rarely face more than one prosecution per crime.

If you fear the prospect of retrial in your criminal case, why not discuss it with the criminal defense attorneys at Gregory and Waldo? We will answer your questions, allay your fears and do what we must to help. Call for a consultation at 702-830-7925 today.