Dismissal or withdrawal of charges and mistrial

Dismissal or withdrawal of charges and mistrial

Dismissal or withdrawal of charges and mistrial

courtmartialdefenselawyer268Once jeopardy attaches (after introduction of evidence, in a court-martial), termination of a trial prior to findings will bar a successive prosecution (of the same offense), unless:

  1. There is a “manifest necessity” to terminate proceedings; or
  • The accused consents to the termination.
  • Manifest Necessity
    1. “A trial can be discontinued when particular circumstances manifest a necessity for so doing, and when failure to discontinue would defeat the ends of justice. “
      Wade v. Hunter, 336 U.S. 684 (1949).

      1. Wade
        originated as court-martial and the opinion provides great insight into manifest necessity. Wade was accused of raping a woman in Krov, Germany in March, 1945. Wade, at that time, was a Soldier in the 76th Infantry Division. Between the date of the offense and the court-martial (22 days), the Division had advanced 22 miles further into Germany. Many of the witnesses were unavailable and the panel, after closing for deliberations, reopened and announced that the court would be continued due to the unavailability of witnesses. A week later, the Commanding General of the 76th Infantry Division withdrew the charges and transmitted them to the Commanding General of the Third Army. The Commanding General of the Third Army concluded that the tactical situation of his command and its considerable distance from Krov made it impracticable for Third Army to conduct the court-martial. Jurisdiction was transferred to Fifteenth Army, and Wade was tried and convicted.
      2. The Court held that there was manifest necessity in this case and therefore, the second trial was not barred by the Double Jeopardy Clause.
      3. Contrarily, CAAF, in
        Easton
        , 71 MJ ___ (CAAF 2012), found that manifest necessity did not exist in a case where the convening authority withdrew charges after the panel had been sworn, but before the introduction of evidence due to taped depositions being unusable. (1) Though there were other considerations the court took into account in coming to their decision, the court noted that the convening authority did not articulate his reasons for withdrawing the charges, nor was there any rationale put on the record. (a) Practice Tip: If the convening authority decides to withdraw charges at any point during the court-martial, the reasons for so doing should be clearly articulated (if he is thinking of referring those charges to a subsequent court-martial).
    2. Note, there is no rigid test or formula to determine whether manifest necessity existed at the time of withdrawal. There does, however, under
      Wade
      , appear to be a balancing test (of sorts) that you can use in determining whether manifest necessity exists:

      1. Defendant’s valued right to have his trial completed by a particular tribunal vs. the public’s interest in fair trials designed to end in just judgments.
  • Request or Consent of the Accused
    1. If the accused requests or consents to a mistrial, the double jeopardy clause prohibits retrial only if the government’s conduct prior to the judge granting the mistrial was intended to provoke the accused into moving for a mistrial.
      See Oregon v. Kennedy
      , 456 U.S. 667, 679 (1982).