State v. Torres, 328 N.J. Super. 77 (App. Div. 2000),
reversed the trial court’s grant of defendant’s mistrial
request. In his opening statement to the jurors the
prosecutor stated that a coindictee, who had pleaded
guilty to the three murders for which defendant was
being tried, would testify for the State and implicate
defendant. When that coindictee subsequently refused
to testify, the trial court granted defendant’s mistrial
request, dismissed the indictment, and barred any retrial
on double jeopardy grounds. In this case of
overwhelming guilt, federal double jeopardy consider-
ation did not preclude defendant’s retrial. The
prosecutor never deliberately provoked defendant’s
mistrial request -- the record disclosed no pattern of
prosecutorial error, the State argued vociferously against
defendant’s mistrial motion, neither trial judge found
that the prosecutor intended to provoke a mistrial, and
the error was made in the opening statement before any
evidence was offered or admitted and prior to the point
where the prosecution’s success or failure could
reasonably have been assessed. Apart from these
determinations, moreover, nothing in the record suggests
any prosecutorial motive for provoking a mistrial. The
appellate court also concluded that the New Jersey
double jeopardy prohibition provided no greater
protection than its federal counterpart, but rather is
coextensive with it. And no fundamental fairness
considerations required any different result here,
particularly because the bar against reprosecution is not
a sanction applied to punish prosecutorial or judicial
error. Finally, the Appellate Division determined that
the public should not suffer because of a prosecutor’s
error. A blundering or evil prosecutor can be addressed
in ways that do not harm the public, which would
happen if an offender is released and commits future
crimes. The court did commend the matter to the
Attorney General to afford him “an opportunity to take
appropriate curative action” against the prosecutor.
B. Manifest Necessity
In United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547,
27 L.Ed. 543 (1971), the trial court, acting on its own
motion and without defendant’s consent, declared a
mistrial to allow prosecutors to confer with their
witnesses about potentially self-incriminating testi-
mony. The Supreme Court affirmed a decision barring
retrial. The Double Jeopardy Clause does not bar retrial,
even where defendant did not consent to the declaration
of mistrial, if there is “manifest necessity” for the
declaration of mistrial or if the ends of public justice
would not be served by continuation of the trial. The
Court found no “manifest necessity” for a declaration of
mistrial, only the trial court’s abuse of discretion in acting
on its belief that the witnesses had not been advised of
their Fifth Amendment rights. It noted that it had
“explicitly declined ... to formulate rules based on
categories of circumstances which will permit or preclude
retrial.” Further, the Court said, “The conscious refusal
of this Court to channel the exercise of [judicial]
discretion [in declarations of mistrial] according to rules
based on categories of circumstances ... reflects the elusive
nature of the problem presented by judicial action
foreclosing the defendant from going to his jury. But that
discretion must still be exercised ... [B]right-line rules
based on either the source of the problem or the intended
beneficiary of the ruling would only disserve the vital
competing interests of the government and the
defendant.”In Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066,
35 L.Ed.2d 425 (1973), the trial court granted a mistrial
over defendant’s objection after realizing that under
Illinois law the indictment was defective, it could not be
cured by amendment, and the defect could be raised by
defendant at any time on appeal or in a subsequent habeas
proceeding. The Supreme Court held that “manifest
necessity” existed for the declaration of mistrial and that
the ends of public justice would not have been served by
continuing with the original trial. The Supreme Court
explained that the “manifest necessity” test depends on
the trial court’s discretion and on the circumstances of
the particular case; that the determination involves a
balancing process between defendant’s interest in having
his fate determined by the jury first impaneled and the
State’s interest in fair trials designed to end in just
judgments. A mistrial was necessary and a retrial
appropriate because defendant would have been able to
assert the procedural defect on appeal after the verdict,
thus wasting, time, energy, and money; and Illinois law
did not provide any alternative to remedy the procedural
defect.In Arizona v. Washington, 434 U.S. 497, 98 S.Ct.
824, 54 L.Ed.2d 717 (1978), the trial judge granted the
prosecutor’s motion for a mistrial based on defense
counsel’s improper comment during his opening
statement that evidence had been hidden from defendant
at the first trial. The judge did not explicitly find that
there was “manifest necessity” for a mistrial. The
Supreme Court held that it is not necessary for a trial
judge to make an explicit finding of “manifest necessity”
so long as the record supports the conclusion that the trial
judge exercised “sound discretion” in declaring a mistrial.
The Court defined the “manifest necessity” requirement
as meaning “a high degree” of necessity and noted that