- When a fair and impartial trial becomes impossible due to manifest necessity or prejudice to either party, the court must declare a mistrial.
- An order declaring a mistrial must be supported by findings of facts, and issued prior to the jury returning a verdict.
- In most cases where a mistrial is granted on the defendant’s motion or supported by manifest necessity, double jeopardy does not bar re-prosecution of the defendant; but if the mistrial is prompted by prosecutorial or judicial misconduct, or if it is ordered in error and the defendant objects, then double jeopardy likely bars a retrial.
Overview and Basic Requirements
A mistrial is a procedural device whereby the court terminates a trial prior to the jury reaching a verdict on the merits. See State v. Diehl, 137 N.C. App. 541 (2000), rev’d on other grounds, 353 N.C. 433 (2001). A mistrial is considered a much more “drastic remedy” than other curative measures such as giving cautionary instructions to the jury or seating an alternate juror, but a mistrial may be necessary if a serious occurrence has rendered a fair and impartial verdict impossible. See State v. Stocks, 319 N.C. 437 (1987); see also State v. Taylor, 362 N.C. 514 (2008).
As a general rule (see exceptions below), a mistrial based on manifest necessity such as a deadlocked jury, natural disaster, death of the judge, or fatally defective indictment does not constitute a double jeopardy bar against a retrial of the defendant for the same offense. See, e.g., Illinois v. Somerville, 410 U.S. 458 (1973) (manifest necessity existed where fatally flawed indictment failed to confer jurisdiction); State v. Sanders, 347 N.C. 587 (1998) (mistrial based on jury misconduct did not trigger double jeopardy). But see State v. Lachat, 317 N.C. 73 (1986) (mistrial declared in error, double jeopardy barred retrial).
The particular reasons for granting a mistrial will vary widely, depending on the unique facts and circumstances of each case, but they generally fall into three categories:
- Prejudice to the defendant, per G.S. 15A-1061;
- Prejudice to the state, per G.S. 15A-1062; or
- Jury deadlock or other impossibility of proceeding in the trial in conformity with the law, per G.S. 15A-1063.
For a more detailed discussion of each of these grounds, see the next entry on Grounds for Mistrial.
Before declaring a mistrial, the judge is required to make findings of fact as to why a mistrial is necessary. See G.S. 15A-1064; State v. Jones, 67 N.C. App. 377 (1984). To avoid double jeopardy problems, and to preserve the right to retry a case in which a judge has granted a mistrial, the prosecutor should always make sure that the judge has made and entered adequate findings of fact to support the grounds for mistrial. See State v. Lachat, 317 N.C. 73 (1986) (trial court failed to make adequate findings of fact); State v. Chriscoe, 87 N.C. App. 404 (1987) (trial court made findings, but it was still error to order a mistrial on the grounds that state’s key witness refused to testify). In non-capital cases, the defendant must also object to the judge’s failure to find facts, or else the error will not bar a retrial on double jeopardy grounds. See G.S. 15A-1064, Official Commentary; State v. Odom, 316 N.C. 306 (1986). Failure of the judge to make any findings of fact at all, or failure to make them prior to declaring the mistrial, is error -- but it may be deemed harmless error as long as the record shows ample support for the order. See State v. Odom, 316 N.C. 306 (1986); State v. Felton, 330 N.C. 619 (1992); State v. Pakulski, 319 N.C. 562 (1987).
A judge’s order to grant a mistrial must be made before the jury reaches a verdict. See State v. O’Neal, 67 N.C. App. 65 (1984), aff’d as modified, 311 N.C. 747 (1984). The declaration of a mistrial is in the judge’s discretion and, in the absence of a showing of abuse, will not be disturbed on appeal. See State v. Blackstock, 314 N.C. 232 (1985); State v. Bailey, 97 N.C. App. 472 (1990). The trial judge’s decision is given great deference on appeal, since he or she is in a far better position to evaluate the need for a mistrial than the appellate court on review. See State v. Thomas, 350 N.C. 315 (1999). There is no set limit on the number of times a defendant can be retried following a mistrial – rather, each declaration of mistrial will be examined individually, on its own merits, in light of the particular facts of the case. See State v. Simpson, 303 N.C. 439 (1981); State v. Williams, 51 N.C. App. 613 (1981).
Get the transcript
If the court declares a mistrial and the state plans to re-try the case, the prosecutor should order a copy of the transcript from the first trial as soon as possible. In addition to reviewing the transcript to prepare for impeachment of witnesses with inconsistent testimony on retrial, the state may also have an obligation to provide a copy of the transcript to the defendant, if he or she is indigent and requests it. See Britt v. North Carolina, 404 U.S. 226 (1971) (“there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal”); G.S. 7A-450(b) (state is obligated to provide indigent defendants with “counsel and the other necessary expenses of representation”). But the defendant can be ordered to repay the cost, if convicted. See G.S. 7A-304(a), (c); G.S. 7A-455(b); State v. Harris, 198 N.C. App. 371 (2009).
Mistrial Based on Misconduct of a Party
If the defendant moves for a mistrial based on the defendant’s own misconduct, which he or she now claims has prejudiced the jury, the argument should not be given much weight by the judge. See, e.g., State v. Perkins, 181 N.C. App. 209 (2007) (mistrial motion properly denied where juror overheard defense counsel speaking to defendant in stairwell, trying to convince defendant not to flee); State v. Marino, 96 N.C. App. 506 (1989) (no error in refusing mistrial based on defendant’s profane outburst – evidence was overwhelming, and outburst was unlikely to interfere with fair and impartial verdict).
Conversely, a motion for mistrial likely will be granted if it is based on misconduct by the prosecutor – and if the prosecutor acted in “bad faith” with the intent to provoke the defendant into requesting a mistrial, then a retrial will also be precluded by double jeopardy (see further discussion below). See, e.g., Oregon v. Kennedy, 456 U.S. 667 (1982) (prosecutor’s conduct, even if viewed as harassment or overreaching sufficient to cause a mistrial on motion of defendant, does not bar retrial unless prosecutor intended to goad defendant into moving for a mistrial); State v. Walker, 332 N.C. 520 (1992) (no Kennedy error); State v. White, 322 N.C. 506 (1988) (no Kennedy error -- Kennedy ruling adopted under state constitution). Similarly, if a defendant’s motion for mistrial was prompted by the bad-faith conduct of the judge, double jeopardy will likewise bar a retrial. See Divans v. California, 434 U.S. 1303 (1977); U.S. v. Dinitz, 424 U.S. 600 (1976).
Retrial Following a Mistrial
As mentioned above, in most cases where a motion for mistrial is granted on the defendant’s motion or at the defendant’s request, double jeopardy does not bar re-prosecution of the case. See State v. White, 322 N.C. 506 (1988); Oregon v. Kennedy, 456 U.S. 667 (1982); U.S. v. Jorn, 400 U.S. 470 (1971).
If the court grants a mistrial on its own motion or at the prosecutor’s request (rather than on a defense motion) then the record should clearly reflect whether or not the defendant “acquiesced” in the mistrial. If the defendant objects to the mistrial, then there must be a clear showing of “manifest necessity” for the mistrial, or else a retrial will be barred by double jeopardy. See Arizona v. Washington, 434 U.S. 497 (1978) (must be a showing of “manifest necessity” when mistrial is declared over defendant’s objection); State v. Johnson, 60 N.C. App. 369 (1986) (finding that defendant did not acquiesce to mistrial); State v. Shalow, 251 N.C. App. 334 (2017) (court improperly granted mistrial over defendant’s objection based on state’s motion for alleged manifest necessity due to indictment defect – but no necessity existed since state could have proceeded on lesser offense, so double jeopardy barred retrial).
As long as the defendant is given notice and an opportunity to object before the mistrial is declared, he or she is generally not entitled to appellate review of a mistrial order if he or she fails to object. See State v. Sanders, 122 N.C. App. 691 (1996); State v. Odom, 316 N.C. 306 (1986). However, an objection may not be required when a mistrial is declared in a capital trial. See State v. Lachat, 317 N.C. 73 (1986).
For more information, see the related entry on Double Jeopardy discussing mistrial and retrial.
After a Mistrial
Pursuant to G.S. 15A-1065, after a mistrial has been ordered “the judge must direct that the case be retained for trial or such other proceedings as may be proper.” Id. As noted above, as long as the order for mistrial was valid, double jeopardy ordinarily will not bar a retrial in the case. See State v. Sanders, 347 N.C. 587 (1998); State v. Lachat, 317 N.C. 73 (1986). Therefore, after most mistrials the state may simply re-calendar the case for a new trial, but a few issues regarding what can be heard on retrial are worth noting:
- No “Implied Acquittal” of Greater Offense
The fact that a jury deadlocked on a lesser offense, resulting in a mistrial, does not constitute an “implied acquittal” of the greater offense – if no final verdict was actually returned, the state may retry the defendant for all offenses. See Blueford v. Arkansas, 566 U.S. 599 (2012) (mistrial declared when jury was unanimous for not guilty on murder charges but deadlocked as to lesser charge of manslaughter and had not yet voted on negligent homicide – trial court was not required to accept ‘partial verdicts’ as to some charges, and the state could retry defendant on murder); State v. Booker, 306 N.C. 302 (1982) (jury deadlock on lesser charge of second-degree murder did not prevent re-prosecution of defendant for first-degree murder); State v. Williams, 110 N.C. App. 306 (1993), superseded on other grounds, 111 N.C. App. 861 (1993) (similar ruling); State v. Hatcher, 117 N.C. App. 78 (1994) (no implied acquittal of lesser offenses when jury hung on greater offense).
However, if the jury actually returns a special verdict on an issue, then that issue has been decided and may not be re-litigated upon retrial. See State v. Dial, 122 N.C. App. 298 (1996) (jury returned special verdict on jurisdiction challenge, but deadlocked as to guilt or innocence – state may retry defendant for the underlying offense, and defendant is precluded from raising the jurisdictional issue again).
- No Collateral Estoppel
When a jury deadlocks and fails to reach a final verdict, the fact that they may have expressed an opinion or conclusion regarding a particular issue (through notes, questions to the court, etc.) does not constitute collateral estoppel which bars the parties from re-litigating that issue at the retrial. See State v. Herndon, 177 N.C. App. 353 (2006) (jury deadlocked as to verdict, but had indicated in a note that they unanimously agreed defendant was not the initial aggressor – at retrial, state was not barred from arguing again that defendant was the aggressor); State v. Booker, 306 N.C. 302 (1982); State v. Mays, 158 N.C. App. 563 (2003).
- Evidentiary Rulings
The retrial is de novo, so neither motions in limine argued before the trial nor evidentiary rulings made in-trial are binding on the court at a retrial. See, e.g., State v. Harris, 198 N.C. App. 371 (2009) (previous judge’s ruling on 404(b) issue was not binding on judge who heard retrial); Burchette v. Lynch, 139 N.C. App. 756 (2000) (retrial is de novo, prior rulings not binding); State v. Lawrence, 179 N.C. App. 654 (2006) (unpublished) (motion in limine denied at first trial was granted on retrial). For the same reason, pre-trial motions to suppress evidence may not be binding on retrial. See State v. McNeill, 170 N.C. App. 574 (2005) (judge has authority to reverse his own ruling on motion to suppress based on 4th amendment grounds and admitting evidence later at trial); State v. Thomas, 199 N.C. App. 319 (2009) (unpublished) (noting preliminary nature of motion to suppress).
May vs. Must vs. Should?
Just because the judge at the retrial “may” reconsider his or her rulings on pre-trial motions does not mean that the judge “must” or “should.” For example, if the defendant tries to renew his motion to suppress a confession that the court already denied at the first trial, the judge can just re-adopt the prior ruling without a new hearing. The prosecutor should argue to the court that there is no reason to re-litigate the exact same issue over again, when there has been no other change in the relevant facts or the applicable law. See State v. Grogan, 40 N.C. App. 371 (1979) (trial court properly denied defendant’s request for rehearing on pretrial motions after mistrial - “nothing alleged by the defendant in his motion for rehearing and supporting affidavits required [the judge at retrial] to rehear the motion which had previously been finally denied”); see also G.S. 15A-975(c) (normally requires a showing of new facts to justify rehearing a motion to suppress which has already been denied).