In Broward County, where the trial court dismisses an indictment before the jury is sworn or before the court hears evidence, jeopardy has not attached, and the defendant may again be indicted and tried for the same offense. A good Broward County criminal attorney knows that the assigned prosecutor may be entitled to dismiss the case before trial commences. Once the defendant is placed in jeopardy, however, the defendant is entitled to have the trial proceed to a final verdict unless “manifest necessity” warrants a mistrial. Fort Lauderdale criminal attorney William Moore can explain these nuances to clients.
Every Fort Lauderdale criminal lawyer must accept the fact that the trial judge exercises broad discretion in identifying situations in which a mistrial is appropriate. However, Broward County criminal judges do recognize several-forms of manifest necessity:
- If a mistrial is declared because of a deadlocked jury, double jeopardy does not bar a second trial in Broward County.
- Misconduct by the defendant or defense counsel, which necessitates a mistrial, will not bar-a- second trial in Broward County.
- A defense motion for a mistrial constitutes a deliberate election to forego a claim of double jeopardy at a subsequent prosecution (Retrial is barred, however, if the defendant’s motion for a mistrial was motivated by prosecutorial or judicial conduct intended to provoke the mistrial motion.
Fort Lauderdale criminal lawyer must be mindful that if the trial concludes in a conviction that is reversed on appeal, the defendant normally can be retried for the same offense.
However, double jeopardy imposes two limitations upon a second prosecution.
- A reversal of the initial conviction because of the insufficiency of the evidence amounts to a directed verdict of acquittal, which bars further prosecution. In Tibbs v. Florida, U.S. Supreme Court treated reversal because of insufficiency of the evidence as distinct from reversal on the weight of the evidence. A decision that the verdict was against the weight of the evidence is similar to a mistrial because of a deadlocked jury, and a retrial is permissible. Only a decision that the evidence was legally insufficient to support the verdict will shield the defendant from retrial.
- The second limitation upon retrial is that the defendant cannot be charged with a greater offense than that for which the defendant was convicted at the first trial. A conviction of a lesser included offense (e.g., second degree murder) at the first trial constitutes an implied acquittal of the greater offense (first degree murder). Thus, the defendant cannot be charged with the greater offense on retrial. The prohibition of double jeopardy does not bar imposition of a harsher sentence at a second trial, but the due process clause places some limitations upon increased sentences.
The constitutional protection from being tried twice for the same crime is not one that needs to be asserted often. The fact is that in today’s criminal justice system, case filers working for the State Attorney’s Office generally avoid any attempt to knowingly violate this foundation of our constitution. Nonetheless, every criminal defense attorney will come across the issue in one way or another every year or so.
Fort Lauderdale criminal lawyer William Moore handles all varieties of criminal defense charges. If you have been arrested or charged with a crime in Broward, contact experienced Fort Lauderdale criminal lawyer Moore.