In State v. Dunns, 266 N.J. Super. 349 (App. Div.
1993), certif. denied, 134 N.J. 567 (1993), the Appellate
Division dismissed an indictment for attempted murder
on Double Jeopardy grounds. Defendant had been
convicted in the first trial which had subsequently been
reversed on appeal. The second trial ended in a mistrial
when the key State’s witness refused to testify despite a
grant of immunity and was jailed on contempt charges.
After the mistrial, defendant moved to have the
indictment dismissed on double jeopardy grounds which
motion was denied. The appellate court found that the
State had not acted in bad faith and indeed had done all
it could to ensure the witness would be present and
testify. Nevertheless, the Appellate Division dismissed
the indictment, finding that based upon the history of
the case and the witness’ repeated refusal to testify despite
being jailed for contempt, there was no reason to believe
that she would ever testify and that without her
testimony there was no case. The court likened this case
to State v. Abatti, 99 N.J. 418 (1985), and found that
while technical double jeopardy doctrine would not
prevent a retrial, further pursuit of this matter would
offend principles of fundamental fairness and not serve
the ends of justice.
Love v. Morton, 112 F.3d 131 (3d Cir. 1997), held
that manifest necessity to declare a mistrial did not exist
when a trial judge learned of the death of his mother-in-
law and did not consider substitution of another judge
who was available to begin trial either that afternoon or
the following morning.
In State v. Loyal, 164 N.J. 418 (2000), the Court held
that the trial court correctly concluded that defense
counsel’s prior representation of a material recanting
witness posed a significant risk to the reliability of the
outcome of defendant’s trial and acted appropriately in
declaring a mistrial over the objection of both the
prosecution and defense counsel. The Court further
found that defendant’s retrial did not violate the federal
or state constitution’s prohibition against double
jeopardy because there was no evidence of misconduct,
bad faith or inexcusable neglect on the part of the State
and because the delay in the proceedings did not
prejudice defendant.
State v. Allah, 334 N.J. Super. 516 (App. Div. 2000).
A codefendant on drug charges pleaded guilty under an
agreement that required him to testify against defendant.
At defendant’s trial, codefendant initially testified but
then asserted a Fifth Amendment privilege. Finding
manifest necessity, the trial court granted a mistrial.
Defendant was convicted at his second trial and raised a
double jeopardy issue for the first time on appeal. The
Appellate Division affirmed defendant’s conviction. The
Court held that manifest necessity did not exist for the
declaration of mistrial, because codefendant twice had
waived his privilege: once when he pleaded guilty, and
again when he testified. However, the Court ruled,
although double jeopardy principles would have barred
retrial had defendant raised the issue before trial as
required by R. 3:10-2(c), defendant procedurally waived
the issue by not raising it until appeal. Additionally, the
Court ruled, trial counsel’s failure to raise the double
jeopardy issue was not ineffective assistance of counsel,
because the trial itself was fair and the result reliable.C. Deadlocked JuriesThe discharge of a jury that cannot agree on a verdict
does not, as a matter of double jeopardy, preclude retrial.
United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27
L.Ed.2d 543 (1971); Downum v. United States, 372 U.S.
734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1964); State v.
Williams, 30 N.J. 105 (1959). In State v. Roller, 29 N.J.
339 (1959), involving two single-count indictments
consolidated for trial, one indictment was dismissed, and
the jury was unable to reach a verdict on the other. The
jury was discharged, and retrial on the count on which
the jury had deadlocked was permitted. See also State v.
D’Amato, 218 N.J. Super. 595 (App. Div. 1986), certif.
denied, 110 N.J. 170 (1988); State v. Roach, 222 N.J.
Super. 122 (App. Div. 1987), certif. denied, 110 N.J. 317
(1988).VIII. GOVERNMENT APPEALS
The State may appeal from a dismissal granted on
defendant’s application if the dismissal is not related to
a factual determination of guilt or innocence. In United
States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65
(1978), the Court likened a dismissal based on grounds
unrelated to guilt or innocence to declaration of a
mistrial, cf. Lee v. United States, 432 U.S. 23, 97 S.Ct.
2141, 53 L.Ed.2d 80 (1977), which if made on
defendant’s motion, generally permits retrial. The Court
explained that an acquittal occurs only when “the ruling
of the judge, whatever its label, actually represents a
resolution in defendant’s favor, correct or not, of some or
all of the factual elements of the offense charged.” The
Court further explained that “... where the defendant
himself seeks to have the trial terminated without any
submission to judge or jury as to guilt or innocence, an