Also known as: abortive trials · mistrial
Written by attorneys · grounded in primary & secondary sources — see 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.
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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.
A 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.
A 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.
Police 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.
An 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…