Close Menu

Can I Be Retried If The Judge Declares A Mistrial?

Jackson & Pearland Lawyer > Blog > Criminal Defense > Can I Be Retried If The Judge Declares A Mistrial?

Can I Be Retried If The Judge Declares A Mistrial?


One of the most basic constitutional protections for defendants in criminal cases is the prohibition of “double jeopardy.” The Fifth Amendment to the United States Constitution provides that no person “be subject for the same offence to be twice put in jeopardy of life or limb.” In practical terms, this means that once a jury is chosen and sworn-in, jeopardy has attached and if the case is ended prematurely–i.e., the judge declares a mistrial–then the prosecution cannot retry the defendant for the same crime.

Now, there are exceptions to this rule. First, jeopardy does not attach if the defendant agrees to the mistrial. Second, if the mistrial was based on “manifest necessity” due to “extraordinary circumstances,” then the prosecution may also seek to retry the defendant, notwithstanding the normal prohibition against double jeopardy.

So what are the extraordinary circumstances that would justify a mistrial without jeopardy attaching? Texas courts have said it must be a situation where it is effectively impossible to proceed with the trial or reach a fair verdict. A judge may also declare a mistrial in this context if any verdict would be automatically reversed on appeal due to legal error.

Trial Ends Prematurely After Judge Gets Angry at Defense Lawyer

A recent decision from a divided three-judge panel of the Texas 14th District Court of Appeals here in Houston offered a fairly unusual example of a judge declaring a mistrial and the court finding no double jeopardy bar against a retrial. The defendant in this case, State v. Contreras, was charged with assaulting a family member.

On the first day of the trial, the defendant’s attorney informed the judge that his client, who only spoke Spanish, would like an interpreter. This forced the court to restart the jury selection process after just 10 minutes. The next day, the judge expressed displeasure at the attorney after he asked a question that technically violated discovery rules. The judge, without any prompting from the prosecution, declared a mistrial on the grounds that the attorney was “not able to provide effective assistance of counsel” to his client.

The judge further declared this was a mistrial due to manifest necessity, so the prosecution could retry the defendant. The defendant then filed a motion for a writ of habeas corpus, effectively challenging the manifest necessity finding. The judge denied the motion. On appeal, a majority of the 14th District panel upheld that decision. One judge dissented, pointing out that the judge’s “anger” over defense counsel’s mistakes did not rise to the level of “ineffective assistance of counsel,” nor should it have justified a mistrial in the first place.

Contact Texas Criminal Defense Lawyer Keith B. French Today

If you are facing trial it is important to work with a Pearland criminal defense attorney who can effectively communicate with you and represent your interests in court. Contact the offices of Keith B. French Law, PLLC, today to schedule a consultation with a member of our team.


Facebook Twitter LinkedIn

© 2021 - 2024 Keith B. French Law, PLLC. All rights reserved.
Powered by Matador Solutions