Retrial barred if mistrial declared after jeopardy attaches and before findings under R.C.M. 915(c)(2) if

  1. Defense objects and judge abuses discretion. Burtt v. Schick , 23 M.J. 140 (C.M.A. 1986). Trial counsel requested mistrial when defense divulged accomplice’s sentence. Granted over defense objection; abuse of discretion, double jeopardy barred retrial. – or –
  2. Intentional prosecution misconduct induces mistrial. United States v. DiAngelo , 31 M.J. 135 (C.M.A. 1990). Trial counsel’s cross examination of accused elicited juvenile arrest record. Fact of arrest record had not previously been disclosed to defense despite discovery request. Trial court granted mistrial. CMA holds that conduct of trial counsel did not amount to prosecutorial misconduct and therefore, under R.C.M. 915(c)(2)(B), retrial of the accused was not barred.

Representing Guilty Clients: How do defense lawyers sleep at night?

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