What is a Mistrial? | What Happens After a Mistrial?

By Benson Varghese

Last Updated: August 12th, 2022
Published on: December 1st, 2016

The best way to prepare for a criminal trial is to expect the unexpected. Anything can happen and, when things go awry, sometimes a mistrial is declared, which is a trial that is terminated before a verdict can be reached. Here’s a look at some common grounds for a mistrial and what happens after the fact:

When Can a Judge Declare a Mistrial?

A mistrial may be declared for a number of reasons. One of the most common reasons for a judge to declare one is due to a hung jury. A “hung jury” is when a jury deadlocks after lengthy deliberations and can’t come to an unanimous decision on the defendant’s guilt or innocence.

A mistrial can also occur when there has been a fundamental injury to the rights of a defendant to have a fair trial. Reasons could include:

  • Rule violations, such as a prosecutor failing to turn over evidence to the other side;
  • A witness blurting out an inadmissible statement;
  • Juror misconduct, such as visiting a crime scene, researching the case, or drinking;
  • Extraordinary circumstances, such as death of an attorney or the judge;
  • A fundamental error that is prejudicial (unfair) to the defendant and that cannot be cured or overcome by an instruction to the jury

The prosecution or the defense can make a motion for a mistrial or a judge can declare one on their own initiative or sua sponte. If a judge denies a motion either side’s motion for a mistrial, the trial goes on.

What Happens after a Mistrial is Declared?

Mistrials can be very emotional for the parties involved in the case. When a trial begins, people expect there to be some sort of resolution at the end. A mistrial, in essence, temporarily leaves the case in limbo until decisions can be made about how and when to move forward.

Depending on what prompted the mistrial, most cases will be retried again at a later date. This can benefit the defense. Because prosecutors must prove their case beyond a reasonable doubt, a mistrial might prompt prosecutors to reevaluate their case based on what they have seen of the defense’s hand. Some cases are resolved through a plea bargain to a lesser charge or even a dismissal.

What About Double Jeopardy? Can You Be Tried Twice for the Same Crime?

The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution prevents the government from prosecuting a defendant more than once for the same offense. However, most of the time double jeopardy doesn’t apply if a mistrial is declared. If the mistrial was prompted due to a hung jury or if the defense requested or consented, then double jeopardy doesn’t come into play.

However, there are instances in which double jeopardy will apply and the case will be barred from further prosecution. For example, if the mistrial was declared due to prosecutorial misconduct, over the objection of the defendant, or for no good reason, the state likely will not get a do-over.

It’s important to point out that most judges declare a mistrial only after careful consideration and in cases of absolute necessity.

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What is a Mistrial? | What Happens After a Mistrial?
Varghese Summersett PLLC
Varghese Summersett PLLC