necessity was not to be interpreted literally. The basis for
the mistrial will often determine the degree of scrutiny to
be given to the motion. The Court held that the strictest
scrutiny is appropriate when the basis for the mistrial is
the unavailability of critical prosecution evidence or
when there is reason to believe that the prosecutor is using
the superior resources of the State to harass or to achieve
a factual advantage over the accused. One the other hand,
the Court held, a mistrial ruling premised upon the trial
judge’s belief that the jury is unable to reach a verdict
generally permits retrial. The Court also noted that
defense counsel’s comments about the previous
misconduct had affected the impartiality of the jury, and
as a consequence, the mistrial was appropriate because in
these circumstances “the public’s interest in fair trials
designed to end in just judgments” must prevail over the
defendant’s “valued right” to have his trial concluded
before the first jury impaneled.
State v. Stani, 197 N.J. Super. 146 (App. Div. 1984).
At a robbery trial, the State was unable to produce the
victim, who was the only witness to the alleged robbery.
Without the victim’s testimony, the State was unable to
prove a prima facie case. As a result, the court sua sponte
granted a mistrial and dismissed the charges. The State
appealed, and the Appellate Division held that further
prosecution was barred by constitutional principles of
double jeopardy. The court noted that once a jury has
been impaneled and sworn and the prosecution goes
forward before the jury and testimony is taken, jeopardy
has attached. The court observed that “the State may not
retreat from the field when its case turns sour and then be
permitted to sally forth on a further day before a new jury
when its case is refreshed and reinforced.” 197 N.J. Super.
at 151.
In State v. Farmer, 48 N.J. 145 (1966), the Supreme
Court held that the double jeopardy protection did not
bar retrial where a mistrial had been declared by the trial
court sua sponte on the morning of the first day of trial
devoted to presentation of evidence. The trial judge had
determined that the interests of both the defendant and
the public required the delay to permit defendant to
investigate reports which the prosecution was required to
deliver under a discovery order.
Then in State v. Rechtschaffer, 70 N.J. 395 (1976),
defendant was charged with possession of marijuana and
possession of marijuana with intent to distribute. At
trial, one of the arresting officers testified that defendant
threatened to “take his hunting knife and kill” the
informant. Defendant moved for a mistrial on both
counts because of this testimony. The trial court granted
a mistrial on the charge of possession with intent to
distribute but not on simple possession, over the
objections of both defendant and the prosecutor.
Defendant was convicted of simple possession. A second
trial took place on the charge of possession with intent to
distribute, and defendant was convicted of that charge
too. On appeal, the Appellate Division upheld
defendant’s conviction for possession with intent to
distribute but voided the first conviction for simple
possession, on the ground of merger. The Supreme Court
reversed and reinstated the conviction for simple
possession, while vacating the conviction for possession
with intent to distribute. The Supreme Court noted that
where the trial judge acts sua sponte over the objection of
both parties, the propriety of the mistrial depends upon
the sound exercise of the court’s discretion, and a mistrial
should be declared only in those situations which would
otherwise result in injustice. The Court concluded that
the trial judge had erroneously declared a mistrial on the
charge of possession with intent to distribute because the
testimony about defendant’s threat was not objection-
able. Defendant’s conviction on that charge, therefore,
was vacated. As noted, the conviction for possession of
marijuana was reinstated.In State v. Hudson, 139 N.J. Super. 360 (App. Div.
1976), the prosecutor failed to comply with R. 3:15-
2(a), requiring him to move before trial for a judicial
determination whether a portion of a statement by a
codefendant, referring to defendant could be effectively
deleted. The prosecutor’s omission prevented the court
from determining before the trial whether separate trials
of the defendants were necessary. The prosecutors’s non-
compliance was negligent. During the course of trial, it
became apparent that the offending portions of the
codefendant’s statement could not be effectively deleted.
The trial judge, over the objections of the prosecutor and
the defendants, declared a mistrial and ordered a
severance. The Appellate Division was satisfied that the
termination of the joint trial by a declaration of a mistrial
was manifestly necessary to protect the rights of
defendants and was required to serve the public’s interest
in fair trials that end in just judgments. Therefore,
double jeopardy did not bar a second trial. See also Oregon
v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d
416 (1982).State v. Gallegan, 117 N.J. 345 (1989), held that
adjournment of a trial by a municipal court judge because
of the prosecutor’s unavailability is not an adjudication
on the merits, and double jeopardy principles did not bar
“renewal” of the trial.