Also known as: abortive trials · mistrial
Written by attorneys — see sources below.
A trial that ends without a verdict on the merits because the jury cannot agree. The proceeding is terminated and the defendant may be retried on the unresolved counts.
Federal prosecutors charged procurement officer Diaz with accepting bribes. After the jury was empaneled and sworn, deliberations began but the panel could not reach agreement on any count. The court declared an abortive trial on all counts and discharged the jury. The government then scheduled a new trial on the same charges.
In a federal fraud prosecution, the jury reported it was deadlocked after three days. Before declaring an abortive trial, the judge invited both the defense and the government to address whether a mistrial was proper and to propose any alternatives. The defense objected and suggested further instructions, but the court found no viable option and ended the proceeding.
A state jury convicted a defendant but the trial court later vacated the sentence on constitutional grounds. The state retried the defendant and imposed a longer term. The Supreme Court held that the second prosecution did not violate double jeopardy because the original proceeding had ended in an abortive trial.
Respondent Pearce was convicted in a North Carolina court upon a charge of assault with intent to commit rape and sentenced to prison for a term of 12 to 15 years. Several years later the North Carolina Supreme Court reversed his conviction upon the ground that an involuntary confession had unconstitutionally been admitted in evidence against him. He was retried, convicted, and sentenced by the trial judge to an eight-year prison term, which when added to the time he had already spent in prison amounted to a longer total sentence than that originally imposed. Pearce then began this habeas corpus proceeding in the United States District Court for the Eastern District of North Carolina, which held that the longer sentence imposed upon retrial was unconstitutional and void, and the Court of Appeals for the Fourth Circuit affirmed. Respondent Rice pleaded guilty in an Alabama trial court to four separate charges of second-degree burglary and was sentenced to prison terms aggregating 10 years. Two and one-half years later the judgments were set aside in a state coram nobis proceeding upon the ground that Rice had not been accorded his constitutional right to counsel. He was retried upon three of the charges, convicted, and sentenced to prison terms aggregating 25 years with no credit given for the time he had already spent in prison. Rice then brought this habeas corpus proceeding in the United States District Court for the Middle District of Alabama. That court held that the state trial court had acted unconstitutionally in failing to give credit for time served and in imposing harsher sentences upon retrial. The Court of Appeals for the Fifth Circuit affirmed. The Supreme Court granted certiorari in both cases.
View caseA defendant convicted after an abortive trial sought to apply a newly announced constitutional rule on habeas. The Court held that the rule would not apply retroactively to cases already final, limiting the benefit of the new standard to future proceedings.
Petitioner Teague, a black man, was convicted in an Illinois state court of three counts of attempted murder, two counts of armed robbery, and one count of aggravated battery by an all-white jury. During jury selection for petitioner's trial, the prosecutor used all 10 of his peremptory challenges to exclude blacks. Petitioner's counsel used one of his 10 peremptory challenges to exclude a black woman who was married to a police officer. After the prosecutor had struck six blacks, petitioner's counsel moved for a mistrial. When the prosecutor struck four more blacks, petitioner's counsel again moved for a mistrial, arguing that petitioner was entitled to a jury of his peers. The prosecutor defended the challenges by stating that he was trying to achieve a balance of men and women on the jury. The trial court denied the motion, reasoning that the jury appeared to be a fair one. On appeal, petitioner argued that the prosecutor's use of peremptory challenges denied him the right to be tried by a jury that was representative of the community. The Illinois Appellate Court rejected petitioner's fair cross section claim. The Illinois Supreme Court denied leave to appeal, and the United States Supreme Court denied certiorari in 1983. Petitioner then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. Petitioner repeated his fair cross section claim, and argued that the opinions of several Justices concurring in, or dissenting from, the denial of certiorari in McCray v. New York had invited a reexamination of Swain v. Alabama. The District Court, though sympathetic to petitioner's arguments, held that it was bound by Swain and Circuit precedent. On appeal, petitioner repeated his fair cross section claim and his McCray argument. A panel of the Court of Appeals agreed with petitioner that the Sixth Amendment's fair cross section requirement applied to the petit jury and held that petitioner had made out a prima facie case of discrimination. A majority of the judges on the Court of Appeals voted to rehear the case en banc, and the panel opinion was vacated. Rehearing was postponed until after Batson v. Kentucky was decided. The Court of Appeals held that petitioner could not benefit from the rule in that case because Allen v. Hardy had held that Batson would not be applied retroactively to cases on collateral review. The Court of Appeals also held that petitioner's Swain claim was procedurally barred and in any event meritless. The Court of Appeals rejected petitioner's fair cross section claim, holding that the fair cross section requirement was limited to the jury venire. Petitioner's conviction became final two and a half years prior to Batson.
View caseA pro se defendant moved for mistrial after standby counsel repeatedly interrupted his presentation. The trial court denied the motion and the conviction was affirmed. The Supreme Court later ruled that the interruptions did not rise to the level that would have justified declaring an abortive trial.
Carl Edwin Wiggins was convicted in a Texas court of robbery and sentenced to life imprisonment as a recidivist. His conviction was set aside because of a defective indictment. When Wiggins was retried he was again convicted and sentenced to life imprisonment. Standby counsel were appointed to assist Wiggins at both trials. Prior to the first trial, a hearing was held on Wiggins' motion to proceed pro se. The court granted the motion, but simultaneously appointed two attorneys to act as standby counsel. Wiggins initially objected to their presence. Shortly thereafter, however, counsel asked Wiggins how they should conduct themselves at trial, and Wiggins expressly requested that they bring appropriate objections directly to the attention of the court, without first consulting him. After the trial, newly appointed counsel discovered that the original indictment was defective, and a new trial was granted. On April 16, 1973, about two months before the second trial began, Wiggins filed a request for appointed counsel, stating that he wished to rescind his earlier waiver of counsel. The next day Wiggins filled out and signed a form captioned "Petition for Appointment of Counsel and Order Thereon." The trial court appointed Benjamin Samples. About a month later Wiggins filed an additional request for counsel. Five days later Wiggins filled out another appointment of counsel form, and the trial court appointed R. Norvell Graham. When pretrial proceedings began on June 4, 1973, Wiggins announced that he would be defending himself pro se; he then firmly requested that counsel not be allowed to interfere with Wiggins' presentations to the court. The trial began on June 5, 1973. Wiggins conducted the defense's voir dire of prospective jurors and made the opening statement for the defense to the jury. Wiggins filed numerous pro se motions in the course of the trial. He cross-examined the prosecution's witnesses freely, and registered his own objections. Throughout the trial Wiggins selected the witnesses for the defense, examined them, decided that some questions would not be asked by the defense, and decided which witnesses would not be called. Wiggins filed his own requested charges to the jury, and made his own objections to the court's suggested charge. After exhausting direct appellate and state habeas review Wiggins filed a petition for federal habeas corpus relief. The District Court denied the habeas petition, but the Court of Appeals for the Fifth Circuit reversed.
View casePolice seized evidence during a warrantless search of a car. At trial the defense moved to suppress the items. After an abortive trial the government introduced the same evidence in the second proceeding. The Court upheld the admission because the second trial was a continuation rather than a new prosecution barred by double jeopardy.
During the night of May 20, 1963, two armed men robbed a Gulf service station in North Braddock, Pennsylvania. They took currency from the cash register and directed attendant Stephen Kovacich to place coins into his right-hand glove, which they then seized. Two teenagers who had seen a blue compact station wagon circling the block observed the same vehicle speed away from a nearby parking lot. They reported to arriving police that four men were inside, one wearing a green sweater. Kovacich separately described one robber wearing a green sweater and the other a trench coat. Police broadcast the description of the car and robbers. Within an hour officers stopped a light blue compact station wagon matching the description about two miles from the station. Petitioner was among the four occupants. He wore a green sweater and a trench coat lay in the car. The men were arrested and the vehicle was driven to the police station. During a thorough search of the car at the station, officers found two .38-caliber revolvers concealed under the dashboard, one loaded with dumdum bullets, the right-hand glove containing small change, and cards bearing the name of Raymond Havicon. Havicon was the attendant at a Boron service station robbed at gunpoint on May 13, 1963. The day after the arrest, police executed a warrant-authorized search of petitioner's home and seized .38-caliber ammunition, including dumdum bullets matching those in one of the revolvers. Petitioner was indicted separately for the May 13 and May 20 robberies. His first trial ended in a mistrial. At the second trial both Kovacich and Havicon identified him as one of the robbers. The items taken from the station wagon were introduced, and the ammunition from his home was also admitted. Petitioner received consecutive sentences of four to eight years for the May 13 robbery and two to seven years for the May 20 robbery. Petitioner did not appeal. In 1965 he filed a state habeas corpus petition that was denied after an evidentiary hearing. The denial was affirmed on appeal. He then sought federal habeas corpus in the United States District Court for the Western District of Pennsylvania. The district court denied the petition without a hearing on the basis of the state record. The Court of Appeals for the Third Circuit affirmed the denial, and the Supreme Court granted certiorari.
View caseAn abortive trial permits retrial when the jury fails to agree on a verdict. Jeopardy must have attached, which occurs when the jury is empaneled and sworn. If the mistrial is declared for manifest necessity or with the defendant's consent, a second prosecution is allowed.
The court must give each defendant and the government an opportunity to comment on the propriety of a mistrial, state whether the party consents or objects, and suggest alternatives.
No. Jeopardy attaches only when the jury is empaneled and sworn. A mistrial declared before that point does not trigger double-jeopardy protection, so the government may retry the defendant.
…356 U.S. 464, 474, 475 (Warren, C.J., dissenting). "Harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches." Downum v. United States , 372 U.S. 734, 736. And finally, it prevents the…