The Jury is Now Sworn In...

What is the significance of swearing in a jury in a criminal case? One reason it is so important is because as soon as the jury is sworn in, jeopardy attaches. This means that the trial has begun and the defendant's life/freedom is currently in jeopardy. At this point, the trial either has to end in acquittal, conviction, or a mistrial declared.

A defendant, therefore, may not be prosecuted for the same offense after an acquittal, a conviction, or an improvidently granted mistrial. Generally, jeopardy attaches when a jury is sworn and impaneled, unless prior to reaching a verdict, the jury is discharged with the defendant's consent or upon some ground of legal necessity.

State v. Rowlands, 343 S.C. 454, 457, 539 S.E.2d 717, 718 (Ct. App. 2000)

It is usually pretty straight forward if the defendant is either convicted or acquitted. But what about when a mistrial has to be declared? The decision to grant a mistrial is within the sound discretion of the trial judge, however, the judge must find that there was a manifest necessity to declare a mistrial.

Although the decision is vested in the sound discretion of the trial court, a mistrial is proper only where it is dictated by “manifest necessity” or “the ends of public justice.” Whether a mistrial is manifestly necessary is a fact specific inquiry. “It is not a mechanically applied standard, but rather is a determination that must be made in the context of the specific difficulty facing the trial judge.” A trial judge's decision to grant or deny a mistrial will not be reversed on appeal absent an abuse of discretion amounting to an error of law.

State v. Rowlands, 343 S.C. 454, 457–58, 539 S.E.2d 717, 719 (Ct. App. 2000)

So if a defendant's trial is declared a mistrial, there is a good chance that the defense will make a motion to bar prosecution from a second trial based on double jeopardy (i.e., the state had a chance to convict, they failed, they can't keep trying). The second trial judge will have to determine if the mistrial was improvidently granted or if there was a manifest necessity.

For example, often times juries can't come to a unanimous decision and are unable to reach a verdict. The trial judge will likely declare a mistrial based on this and the defendant will be retried because it was manifestly necessary to declare a mistrial.

But on the other hand, the case above shows when it is not a necessity, but rather just the fault of the prosecution for not being prepared and/or making the motion before the swearing in. In State v. Rowlands, the state was missing a key witness. After the jury was sworn in, the state made a motion to continue because the witness was not present. The judge declared a mistrial. However, at the second trial, the defense made a double jeopardy motion to bar prosecution and the judge agreed. The second judge (and Circuit Judge, and CoA Judges) did not believe that it was a manifest necessity that the first trial be declared a mistrial because a witness did not show up. Plus, the state was aware before the trial began that the witness was not present ("Where a motion for a continuance is based upon grounds that exist prior to trial, it must ordinarily be made before the jury is sworn." Id. at 460).

Based on these two examples, you can get an idea of what the spectrum is for granting a mistrial out of manifest necessity (obviously every case is unique and each judge has their own discretion). Rowland also cites several other cases as examples of mistrials:

(finding that a mistrial was manifestly necessary where the solicitor died during trial); (finding that the trial court did not abuse its discretion ordering a mistrial where the State introduced improper evidence); (holding that the inability of the jury to agree upon a verdict is regarded as presenting a case of legal necessity for a mistrial); (finding that a mistrial was manifestly necessary where a juror admitted prejudice); but see (holding that a mistrial was not dictated by manifest necessity where the jury requested to rehear more than two hours of testimony after deliberating for five and one-half hours).

State v. Rowlands, footnote 7 (citations omitted)

Defendant Requests the Mistrial

What about when a defendant requests a mistrial? The general rule is that if the defense requests a mistrial, then they are not allowed to come back later and claim double jeopardy. However, there are exceptions to this.

Generally, jeopardy attaches when a jury is sworn and impaneled, unless prior to reaching a verdict, the jury is discharged with the defendant's consent or upon some ground of legal necessity.

State v. Rowlands (emphasis added)

The S.C. Court of Appeals further explained the exception to the rule:

The gravamen of Rowlands and Baum is the improvident grant of a mistrial; whereas, here, the court justifiably granted a mistrial on motion emanating from the defendant.

Mathis claims that, although a defendant's motion for mistrial ordinarily removes any barrier to a retrial, the Solicitor's conduct in the present case falls within the exception defined by the United States Supreme Court in Oregon v. Kennedy.

State v. Mathis, 359 S.C. 450, 458, 597 S.E.2d 872, 876 (Ct. App. 2004) (citation omitted)

What is the rule in Kennedy?

Thus, the Kennedy Court adopted a rule providing that a defendant who has moved for and been granted a mistrial may successfully invoke the Double Jeopardy Clause to prevent a second prosecution only when the prosecutor's conduct giving rise to the mistrial was intended to “goad” or provoke him into moving for the mistrial.

State v. Mathis, 359 S.C. 450, 460, 597 S.E.2d 872, 877 (Ct. App. 2004)

Conclusion

Before granting a mistrial, the original trial judge should determine if it is manifestly necessary. The second trial judge should determine, first who requested the mistrial. If the defense requested it, then the court should look to the standard set out in Kennedy/Mathis. If the state requested it (or the court did so on its own), then was it manifestly necessary?