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Mistrial on Motion by Prosecution Precluded Retrial.

The prosecution moved for a mistrial based on defense counsel’s improper questioning of a witness in defiance of the court’s instructions.  The court granted the mistrial.  The First Department, in a full-fledged opinion by Justice Freedman, determined that the defendant could not be retried.  “When the court declares a mistrial on the prosecution’s motion and over the defendant’s objection, a retrial is precluded unless ‘there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated’ …”  The First Department felt that defense counsel’s conduct, while blameworthy, could have been adequate addressed by alternative measures and, therefore, there was not a sufficient basis in the record for a mistrial.  Matter of Morris vs. Livote, 4334/10, 9012-5107, First Dept. 2-21-13

double jeopardy

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