TITLE THREE — TRIAL PROCEEDINGS
Rule 27. Mistrial; Former Jeopardy
Mistrial on Motion of a Party.
Grounds. Upon motion of a party the court may declare a mistrial where an event has occurred that is prejudicial to the moving party and that deprives that party of a fair trial, and where the prejudice cannot be cured by striking the matter, by an instruction to the jury, or by any other action available to the court.
Time. The motion shall be made as soon as the ground of the motion is known or reasonably should be known, and in a trial to a jury not later than the retirement of the jury to deliberate. A ground known and not raised within that time is waived, but the court for cause shown may grant relief from the waiver.
Manner. The motion shall be made upon the record and, in a jury trial, out of the hearing of the jury. The opposing party shall be afforded an opportunity to be heard.
Lesser Remedies. Before declaring a mistrial upon motion of a party the court shall consider whether a lesser remedy would cure the prejudice, and shall state upon the record why a lesser remedy is or is not adequate.
Mistrial on the Court’s Own Motion; Manifest Necessity.
Standard. The court may declare a mistrial upon its own motion, or over the objection of the defendant, only where there is a manifest necessity for doing so and the ends of public justice would otherwise be defeated.
Hearing. Before declaring a mistrial under this subdivision the court shall afford each party notice and an opportunity to be heard upon the record, and shall inquire whether the defendant consents.
Alternatives. The court shall consider every alternative to a mistrial that is reasonably available, including a continuance under Rule 10, the discharge and substitution of a juror under Rule 24.1(q), a curative instruction under Rule 24.2(h), the severance of counts or defendants under Rule 9(d), and the striking of evidence.
Inability of the Jury to Agree. The inability of the jury, after due deliberation, to reach the unanimous verdict required by Const. art. I, § 7 constitutes a manifest necessity for a mistrial. Before declaring a mistrial upon this ground the court shall proceed as Rule 24.1(r) provides.
Findings; Record. Upon declaring a mistrial the court shall state upon the record the ground of the mistrial, whether it was declared upon the motion of a party or upon the court’s own motion, whether the defendant consented, and, where the mistrial was declared without the defendant’s consent, the manifest necessity upon which it rests and the alternatives considered and rejected. The Clerk shall enter the declaration and the findings upon the docket.
Effect of a Mistrial; Retrial.
Upon the Defendant’s Motion or With Consent. Where a mistrial is declared upon the motion of the defendant or with the defendant’s consent, the defendant may be tried again upon the same charges.
Provoked Mistrial. Notwithstanding Rule 27(e)(1), the defendant shall not be tried again where the court finds that the conduct giving rise to the motion was engaged in by the prosecution, or by the court, with the intent to provoke the defendant into moving for a mistrial.
Without the Defendant’s Consent. Where a mistrial is declared over the objection of the defendant or without the defendant’s consent, the defendant shall not be tried again upon the same charges unless the court found manifest necessity as Rule 27(b) requires.
Scope. A mistrial extends only to the counts and defendants stated in the declaration. The court shall state upon the record whether any count or defendant is unaffected.
Setting for Retrial. Upon declaring a mistrial that does not bar retrial the court shall set the case for retrial and shall state the date upon the record. Rule 19 governs the computation of time for a speedy trial.
Rulings Preserved. Rulings made before a mistrial upon the admissibility of evidence, upon pretrial motions, and upon stipulations remain in effect at a retrial unless the court, upon motion or its own motion, orders otherwise for cause shown.
When Jeopardy Attaches. For the purpose of these rules the defendant is placed in jeopardy:
in a trial to a jury, upon the impanelment of the jury as provided by Rule 24.1(k)(2);
in a trial to the court, upon the administration of the oath or affirmation to the first witness; and
Interlocutory Appeal. Where the trial court issues an order subject to the interlocutory procedures of Rule 15, the trial shall be stayed and the defendant shall not be placed in jeopardy until interlocutory review has been waived or the period specified in Rule 15(b)(1) has expired, as Rule 15(e) provides. A motion the determination of which may be appealed under Rule 15 shall be decided before the defendant is placed in jeopardy, as Rule 15(c) provides. A trial shall not commence while an interlocutory appeal is available or pending.
Nolle Prosequi After Jeopardy Attaches. After jeopardy attaches, a nolle prosequi entered without the consent of the defendant has the effect of an acquittal of the charges contained in the nolle prosequi, as Rule 16(b) provides. The Clerk shall enter that effect upon the docket.
Raising a Claim of Former Jeopardy.
By Pretrial Motion. A claim that the defendant has previously been placed in jeopardy for the same offence shall be raised by a motion to dismiss under Rule 13(c), filed within the time allowed by Rule 13(d) and supported by affidavit as Rule 13(a)(2) requires.
Later Claim. Where the ground of the claim was not known and could not reasonably have been known within that time, the claim may be raised at any time before the verdict or finding, and the court shall hear and determine it upon the record.
Determination Before Jeopardy Attaches. The court shall determine a claim raised under Rule 27(i)(1) before the defendant is placed in jeopardy in the pending prosecution. Rule 15(c).
Burden. The defendant bears the burden of producing the record of the former proceeding and of establishing that it was terminated in a manner that bars the pending prosecution. The Clerk shall furnish, upon request, a certified copy of the docket of the former proceeding. 3 R. Stat. § 131.102.
Effect of an Acquittal or a Conviction. A defendant who has been acquitted, whether by verdict, by a finding of not guilty entered under Rule 25, or by the operation of Rule 16(b), shall not again be tried for the same offence. A defendant who has been convicted and sentenced shall not again be tried for the same offence, except upon a retrial ordered under Rule 30, upon the vacating of the judgment and the ordering of a new trial under Rule 18.5 and 6 R. Stat. § 131.501(h), or upon the reversal of the conviction on appeal. A verdict or finding of not guilty returned at a trial in absentia is not disturbed by an order vacating under Rule 18.5, and bars a further prosecution for the offence acquitted. Rule 18.5(7)(b).
Dispositions That Do Not Bar Retrial. The following do not bar a subsequent prosecution for the same offence: the dismissal of an indictment or criminal information before jeopardy attaches; the entry of a nolle prosequi before jeopardy attaches or with the defendant’s consent; the allowance of a motion to dismiss upon a ground unrelated to the sufficiency of the evidence; a mistrial governed by Rule 27(e)(1); and the setting aside of a verdict upon the motion of the defendant under Rule 30(b).
Saving Clause. This rule prescribes the procedure by which a mistrial is declared and by which a claim of former jeopardy is raised and determined. It neither abridges nor enlarges any substantive right. 3 R. Stat. § 121.106(b).