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Bar Journal - September 1, 2001

State v. Gould: Setting the Standard for When Broad Judicial Discretion Encounters Double Jeopardy

By:

INTRODUCTION

Double jeopardy is a key aspect of criminal law as it protects defendants from multiple prosecutions, protects society from the added expense of multiple trials, and allows for efficient and timely adjudication. The effect of a mistrial on a defendant's claim of double jeopardy is crucial in deciding the defendant's claim. As this article will point out, whether the defendant objects or consents to the mistrial is a decisive factor in determining whether double jeopardy bars a retrial. "Manifest necessity" is a key concept that must be understood when discussing double jeopardy. Although the courts have not adopted a formal definition of manifest necessity, Black's Law Dictionary refers to it as, "[a] sudden and overwhelming emergency beyond the control of court and unforeseeable." Manifest necessity is generally considered when the defendant objects to the declaration of a mistrial. This article will lay out standards trial courts must follow in allowing a retrial of the defendant.

The latest addition to the long history of double jeopardy in the State of New Hampshire is State v. Gould.2  In Gould, the New Hampshire Supreme Court set a new standard for trial judges concerning communications between themselves and the jury. This article tracks the development of double jeopardy in New Hampshire through the recent years and articulates where and how Gould fits into it all.

I. STATE V. GOULD

In State v. Gould, Allen D. Gould was on trial in superior court charged with four counts of felonious sexual assault. At trial, as the defendant approached the witness stand, the trial judge heard the defendant say, "It's about time." The judge then excused the jury. It was the judge's opinion that the defendant waited until he was right in front of the jury before making his statement, thereby intending to influence the jury. The judge reprimanded the defendant and asked the prosecutor if he wanted a mistrial. He then questioned the jury, off the record, to determine whether they had heard the defendant's remarks. After a six-minute recess, the judge returned and announced that the jury had, in fact, heard the remarks made by the defendant and granted the State's motion for a mistrial.

Prior to the defendant's retrial, he filed a motion to dismiss the felonious sexual assault charges against him based on double jeopardy provisions. The superior court denied the motion stating that double jeopardy did not bar a second trial. Upon review, the defendant claimed that, because manifest necessity did not exist, the trial court did not have the authority to grant the mistrial. Therefore, the double jeopardy issue came before the New Hampshire Supreme Court in State v. Gould.

The issue in this case was whether the defendant was placed in jeopardy twice by having a retrial after his original trial ended in a mistrial over his objection.10  The court began its analysis of double jeopardy looking to the New Hampshire Constitution because the Federal Constitution does not afford the defendant any greater protection.11  As a result, the Federal Constitution was only used as a guide to the court's analysis.12  The double jeopardy clause of the New Hampshire Constitution had previously been interpreted to mean, "a defendant may not twice be placed in jeopardy for the same offense."13  Further, the court stated that when a defendant's "valued right" is frustrated by a declaration of a mistrial without the defendant's consent, it must be justified by manifest necessity.14  The court emphasized that mistrials should only be declared "with the greatest caution, under urgent circumstances, and for very plain and obvious causes."15  The result is that a determination of manifest necessity is done on a case-by-case basis allowing broad judicial discretion.

The next step in the court's analysis was whether the trial court abused its discretion by granting the mistrial without manifest necessity. The court believed that it did.16  The court stated, "we will defer to the trial court's finding of manifest necessity only where the record affirmatively supports it."17  Upon review, the court had no record of what the trial judge asked the jury or how the jury responded, as the questioning was done off the record during that six-minute recess. As a result, the New Hampshire Supreme Court placed little deference on the lower court's ruling and reviewed the record de novo.18  In doing so, the court reversed the trial court's decision on the ground that the record did not affirmatively support the trial court's discretion in the declaration of a mistrial.19  Further, a new standard regarding double jeopardy arose out of this case requiring that, "in the future, all communications between the trial court and the jury before the jury is excused occur on the record."20 

II. HISTORY OF DOUBLE JEOPARDY

It being fundamentally and morally wrong to try a man for a crime of which he has already been tried and found not guilty. 'The public interest . . . in this safeguard is so strong that an acquitted defendant may not be retried even though the acquittal was based upon an egregiously erroneous foundation.'21 

Justice William A. Grimes

Double jeopardy has a traceable history in the United States, beginning with the Massachusetts Code of 1648 to today's interpretation by both the federal and the state courts.22  In 1788, New Hampshire adopted the Federal Constitution and, like many other states, believed that restrictive clauses needed to be added to their own state constitution. The first ten amendments, which included the double jeopardy clause of the Fifth Amendment, were adopted by the first Congress and then ratified by New Hampshire in 1790.23  With such a long history, double jeopardy has evolved over time. In the early years, much like as in English Common Law, jeopardy only attached once there was an acquittal.24  Today, jeopardy attaches once the jury has been empanelled and sworn,25  or when the first witness is called in a bench trial.26 

The New Hampshire Constitution, which is no less stringent than the United States Constitution, provides that, "no subject shall be liable to be tried, after an acquittal, for the same crime or offense."27  The New Hampshire Supreme Court clarified the state version of double jeopardy in State v. Goodwin in 1976.28  The court held that double jeopardy "does not prevent the threat of being twice punished for the same act" it forbids "twice being tried and convicted for the same offense."29  In Goodwin, the defendant had been charged with multiple offenses arising out of the same conduct. The police stopped the defendant for driving while intoxicated, and, as a result of the stop, the defendant was also charged with possession of marijuana and with operating a motor vehicle while knowingly possessing a controlled drug.30  The court deemed that the second and third offenses to be separate and not lesser-included offenses of the first, due to the language of the statutes.31  The court clearly stated that such circumstances do not trigger double jeopardy.32 

In 1981, the court held that double jeopardy prevents a retrial when a mistrial is granted to the defendant after he or she is provoked to request one due to prosecutorial or judicial overreaching.33  In State v. Scarlett, the prosecutor displayed a bloodstained comforter that he knew would be inadmissible without the expert testimony of a chemist. The comforter was not admitted into evidence, as the prosecutor had not laid the appropriate foundation.34  This resulted in the defendant asking for a mistrial on the grounds of prosecutorial overreaching.35  The court held that the State's actions were not so overreaching as to bar a retrial.36  This case clarified when defendants are barred from using the double jeopardy grounds if they were the ones who requested a mistrial.37 

In 1982, the court distinguished double jeopardy from "the duplication of two trials in two jurisdictions for the same offense."38  In State v. McNally, the defendant was charged and convicted of larceny in Massachusetts. The issue presented on appeal was whether double jeopardy prevented New Hampshire from prosecuting the same defendant for the same criminal action that he had already been convicted of in Massachusetts. The court determined that "jeopardy does not attach if the second offense is different in either law or fact."39  Because Massachusetts and New Hampshire laws differed, the defendant could be prosecuted in the two different jurisdictions without double jeopardy applying.

Furthermore, in 1992, the court in State v. Constant stated, "the New Hampshire constitution provides that no accused shall be prosecuted for the same crime not only after an acquittal but after a conviction as well."40  Unlike the defendant in Goodwin, who was prosecuted for multiple offenses and found not guilty, in Constant, the defendant was previously convicted on a transportation charge that the court determined to be a lesser-included offense.41  In this case, the defendant had previously been convicted of transportation of a controlled drug. The State then indicted that same defendant for possession of a controlled drug- arising from the same criminal action.42  The court held that since the second charge had no additional elements other than those set forth in the statute for transportation, possession was simply a lesser-included offense of the first charge on which the defendant had been convicted and, thus, double jeopardy prevented further prosecution.43  Hence, a defendant may not be tried and convicted for the same offense.

III. THE IDEALS BEHIND DOUBLE JEOPARDY

The one common denominator throughout the historical development in New Hampshire, as well as in the federal courts, involves the importance of double jeopardy, not only to the individual who is on trial but also to the community.44  The double jeopardy clause of the New Hampshire and Federal Constitutions represent the ideals of fairness and equity upon which the criminal justice system is based. For example, in State v. Hogg, the court stated, "[i]t is fundamentally and morally wrong to try a man for a crime which he has already been tried and found not guilty."45  This underlying ideal of fairness was first presented by the United States Supreme Court in Arizona v. Washington, in which the Court said that a second prosecution was "grossly unfair" because of the continuous financial and emotional burden placed on the defendant for such a prolonged period of time.46  The Court went on to say that it unfairly draws out the time during which a stigma is placed on the defendant by the ongoing court battles.47  The Court in Washington continued its explanation of the need for the double jeopardy clause by saying the danger mentioned above also presents itself when the trial is stopped before a verdict is reached.48 

The purpose of the double jeopardy clause for both the New Hampshire and the Federal Constitutions is to protect the individual.49  Double jeopardy protects an innocent individual from facing repeated prosecutions and thereby an increased likelihood of conviction.50  Further, the court in Hogg also said that the courts should "look to the individual's interest rather than to the interests of the sovereign in determining whether these prosecutions are banned."51  But Mr. Justice Black may have best explained the reasoning behind double jeopardy in Green v. United States, when he said:

The underlying idea, one that is deeply ingrained in at least Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.52 

The concern for public interest runs parallel to the concern for protecting the defendant. Double jeopardy protects the public's interests in having criminal cases concluded with a sense of finality, rather than seeing them stumble their way through the court system multiple times.53  Although the public is interested in having trials conducted fairly and quickly, the courts have set down standards for when the public interest in obtaining a final judgment for a case is outweighed by the interest in allowing the prosecutor "fair opportunity to present his evidence to an impartial jury."54  There are some instances when neither the possible embarrassment and the financial burden of the accused nor public interest in a final judgment do not come into play. This occurs most often when a defendant's valued right to have his trial "completed by a particular tribunal" is thwarted by an unjustified declaration of a mistrial.55 

In order to understand whether double jeopardy prevents a retrial, one must first understand the concept of a mistrial, for the two are intertwined. When a mistrial is declared, certain factors and conditions must be met in order for a defendant to be tried again for the same offense.56  At times, when those conditions are not satisfied the courts have barred retrial based on double jeopardy grounds.57  A mistrial can be declared based on a myriad of circumstances. The issue then becomes under what circumstances double jeopardy applies, and further, what factors are to be considered when declaring a mistrial.

IV. DOUBLE JEOPARDY ANALYSIS WHEN A DEFENDANT CONSENTS TO A MISTRIAL

The Supreme Court of New Hampshire articulated the standard that, when a defendant consents to the declaration of a mistrial, double jeopardy does not apply unless the consent is based on "judicial or prosecutorial impropriety that was intended to provoke the defendant into filing the motion."58  In State v. Montella, the court held that alleged prosecutorial misconduct did not necessitate a dismissal with prejudice.59  In Montella, a State's witness referred to suppressed evidence during direct examination.60  In deciding that the prosecution did not precipitate a mistrial, the court stated that the witness's reference to suppressed evidence was unexpected and not at all "calculated" by the prosecutor.61  The court acknowledged that the facts of the case did not warrant the constitutional protections against double jeopardy. The conduct of the prosecutor must be intended and designed to place the defendant in a position where "the only reasonable means of extrication to avoid becoming a victim of unlawful trial tactics or inadmissible evidence" is to request a mistrial.62  In a tainted proceeding, a defendant's mistrial request serves to avoid the anxiety, expense, and delay of multiple prosecutions that are similar to the objectives served by the double jeopardy clause.63 

V. DOUBLE JEOPARDY ANALYSIS WHEN A DEFENDANT OBJECTS TO A MISTRIAL

When a defendant objects to a mistrial, the court applies a different standard to answer whether or not the double jeopardy clause bars the second trial. When a mistrial is declared over the defendant's objection, the prosecution has to prove that the mistrial was justified by manifest necessity in order for the defendant to be retried on the same offense.64  As in State v. Gould, when a mistrial is granted without manifest necessity, the defendant's second trial is barred by the double jeopardy clause.65  As case law has demonstrated, the avoidable end result is that defendants, sometimes charged with such serious crimes as felonious sexual assault, aggravated felonious sexual assault, homicide, and selling cocaine, are beyond prosecution.66  In order to prevent such injustice, all active participants in a criminal prosecution must be aware of what constitutes manifest necessity and its application. Although the application of double jeopardy is not an injustice, the injustice occurs when trial courts abuse their discretion in declaring a mistrial. When trial judges do not correctly determine manifest necessity, the defendant whose first trial should not have ended is barred from a second prosecution. An example of this injustice occurred in State v. Gould where the trial judge precipitously granted a mistrial without determining if manifest necessity existed or not, thereby barring a second prosecution of the defendant.67 

In Arizona v. Washington, the United States Supreme Court addressed the degree of necessity required to declare a mistrial over a defendant's objection.68  In upholding the lower court's mistrial ruling, the Court stated that a defendant's valued right to a trial is sometimes "subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury."69  When this "valued right" is frustrated by a mistrial, the prosecutor's heavy burden of justifying the mistrial amounts to manifest necessity.70  The Court stated that manifest necessity does not describe a standard that can be applied mechanically.71  In fact, the term "necessity" cannot be interpreted literally. Instead, it is to be assumed that there are degrees of necessity and a "high degree" of necessity is required to declare a mistrial over the defendant's objection.72  The determination of what is a "high degree" depends on the discretion of the trial court.73  In Washington, the Court stated, "since [the judge] exercised sound discretion in handling a sensitive problem of possible juror bias . . . mistrial order is supported by the 'high degree' of necessity which is required in a case of this kind."74 

The New Hampshire Supreme Court declared that manifest necessity "ought to be used with the greatest caution, under urgent circumstances, and for plain and obvious reasons."75  In barring the defendant's retrial, the court in State v. King stated that there was no manifest necessity to compel the trial court to issue a mistrial.76  In King, a juror was excused on the first day of trial because of a conflict with the prosecutor.77  The excused juror then told the prosecutor about a juror who had made comments, in jest, about the defendant's guilt.78  The defendant wished to proceed with the trial after the removal of the juror making the comments.79  However, the trial court granted the State's request for a mistrial because of the removal of two jurors and the mid-trial juror voir dire.80  In deciding if the declaration of a mistrial was inappropriate, the appellate court looked to the record to demonstrate whether alternatives had been considered and deemed insufficient before the ruling.81  The record lacked such evidence; therefore, the mistrial was not compelled by manifest necessity.82 

VI. STANDARDS IN DETERMINING MANIFEST NECESSITY

After the courts articulated that the double jeopardy clause does not apply when there is manifest necessity, the issue still remains as to what standards must the trial courts follow to allow re-prosecution of the defendant as well as protect the defendant's constitutional right against double jeopardy. In Washington, the Court stated:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject . . . . To be sure, the power ought to be used with greatest caution, under urgent circumstances, and for very plain and obvious causes.83 

Also, the Court acknowledged that a trial judge "must always temper the decision to abort the trial by considering the importance to the defendant of being able to conclude his confrontation with society . . . ."84  The Court declined to adopt a stringent standard to avoid seriously restricting the trial judges in their discretion.85  While exercising discretion in determining manifest necessity, trial judges should weigh the prosecution and the defendant's competing interests.86 

Even though the courts have given judges discretion in declaring a mistrial, there are also certain guidelines to assist judges in their decision process. In United States v. Jorn, the Supreme Court first made reference to the "scrupulous exercise of judicial discretion" when an appellate court looks at the record below.87  The Court stated that judges are to exercise a sound discretion on deciding whether or not to issue a mistrial in any given circumstance.88  After Jorn, the question still remained, how judges should "exercise sound discretion."

In 1981, and later in 1993, the United States Court of Appeals for the First Circuit addressed the question posed above in Brady v. Samaha and United States v. Simonetti.89  In both court decisions, three factors where used in determining manifest necessity: (1) whether the trial judge considered any alternatives to a mistrial; (2) whether the trial judge conferred with either counsel before making the decision to grant a mistrial; and, (3) whether the decision was made so precipitously that it could not have been the product of any careful consideration of the "valued right" of the defendant.90 

In Brady, six defendants where charged with criminal trespass, and the joint trial ended with the court declaring a mistrial sua sponte.91  The trial court determined that to continue the trial would be unfair to the rest of the defendants and quickly ordered a mistrial without consultation with any parties.92  The First Circuit held that double jeopardy barred retrial for all of the defendants because there was no manifest necessity for the mistrial order.93  The court stated that the trial judge failed to exercise "sound discretion" while making his decision: he did not consider alternatives to a mistrial; he did not afford counsel an opportunity to be heard on the matter; and, he made the decision so precipitously that it does not appear that any consideration was given to the defendant's constitutional protections.94 

In Simonetti, the defendant was charged with conspiracy to possess cocaine with the intent to distribute, and a mistrial was declared over the defendant's objection.95  After the trial had begun, it first became known that the defense counsel had a conflict of interest with a State's witness. The court granted a continuance to resolve the conflict of interest.96  Over Simonetti's objection, the trial court eventually concluded that manifest necessity justified declaring a mistrial.97  On appeal, the First Circuit affirmed the decision of the lower court that double jeopardy did not bar a new trial for the defendant.98  The court stated that the duty of the reviewing court is to ensure that the trial judge engaged in a "scrupulous exercise of judicial discretion" in declaring a mistrial.99  The First Circuit declared that the trial judge did exercise sound discretion because: he held a conference with counsel to discuss remedies and possible alternatives to a mistrial; he granted a continuance to let counsel research the problem; and only after devoting ample time to resolve the conflict of interest did the judge declare a mistrial.100 

Up until the Gould decision, the New Hampshire Supreme Court had adopted the first two factors named in Brady and Simonetti and added its own factor to the analysis.101  While deciding that manifest necessity did not exist, the court in State v. King looked at whether the trial judge considered alternatives to a mistrial and, if so, whether the judge provided reasons for rejecting such alternatives.102  The court also addressed the need for counsel to have an opportunity to be heard on the proposed mistrial.103  The court ruled that manifest necessity did not apply because the record did not reflect the reasons for rejecting alternative theories proposed by the trial judge.104  The ruling was based on the principle that "assuming that the record reflects the trial judge's consideration of alternatives and documents the necessity for the mistrial, the mistrial order will pass constitutional muster . . . ."105  Therefore, prior to Gould, the court had recognized and applied three factors when deciding manifest necessity: (1) the use of possible alternatives to a mistrial, as stated in Brady and Simonetti; (2) counsel having the opportunity to be heard, also as stated in Brady and Simonetti; and (3) the record appropriately reflecting the trial judge's decision process, as stated in King.106 

With the 1999 decision in Gould, the court not only accepted the third factor mentioned in Brady and Simonetti, whether the trial judge decided the mistrial precipitously, but it also applied a bright line rule for trial judges. First, the court noted that the trial judge made his decision "rather quickly . . . and took little time for reflection."107  Therefore, the trial judge made a precipitous decision that would lead one to presume that there was insufficient concern for the defendant's constitutional protections of double jeopardy.108  Second, in holding that manifest necessity did not exist, the court in Gould rationalized that the off-the-record meeting with the jurors could not reveal any actual prejudice by the defendant's statements.109  The court was left to speculate as to whether manifest necessity existed or not.110  The court stated that it would defer to the trial court's finding of manifest necessity only when the record affirmatively supports it and in this case the record did not.111  Based on the inadequacies of the record from the trial court, the court adopted this bright line rule regarding the issuance of mistrials: "we direct that, in the future, all communications between the trial court and jury before the jury is excused occur on the record."112  Therefore, after Gould, the court looks to four factors when deciding if the trial judge exercised sound discretion in declaring a mistrial: (1) whether the trial judge considered alternatives to a mistrial; (2) whether the trial judge afforded counsel an opportunity to be heard; (3) whether the trial judge decided precipitously or after sufficient reflection; and, (4) whether the record reflects the trial judge's decision making process and appropriately reflects a finding of manifest necessity.

CONCLUSION

The importance of double jeopardy is paramount throughout federal and New Hampshire law. As seen from the case law referenced herein, there are times that appellate courts appropriately find the criminal defendant's double jeopardy claim more important than prosecution. If defendants are forced by prosecutorial impropriety to ask for a mistrial then double jeopardy appropriately attaches. However, defendants cannot assert double jeopardy claims when the mistrials were declared based on manifest necessity. Many of the cases cited have involved the trial judges not appropriately determining manifest necessity before the declaration of a mistrial. The end result is that the defendant is barred from a second prosecution because the first prosecution should not have ended. The history of double jeopardy indicates that protecting defendants outweighs the possible "injustice" of allowing a defendant to go untried. Injustice could be avoided when trial judges adopt the appropriate standards in declaring a mistrial over the defendant's objection. When those standards are used, defendants can be tried a second time without double jeopardy attaching. In State v. Gould, the New Hampshire Supreme Court has appropriately declared standards and guidelines that must be followed to ensure justice and to ensure constitutional protections for criminal defendants.

ENDNOTES

1. Black's Law Dictionary 963 (6th ed. 1990).
2. State v. Gould, __ N.H.__ , 743 A.2d 300 (1999).
3. Id. at 301.
4. Id.
5. Id.
6. Id.
7. Id.
8. Id.
9. Id.
10. Id.
11. Id. at 302.
12. Id.
13. Id. (citing State v. Paquin, 140 N.H. 525, 527 (1995)).
14. Id. (citing State v. Ringuette, 142 N.H. 163, 165 (1997)).
15. Id. (quoting State v. Betrand, 133 N.H. 843, 853 (1991)).
16. Id.
17. Id. at 303.
18. Id. at 302.
19. Id at 303.
20. Id.
21. State v. Hogg, 118 N.H. 262, 264 (1978) (quoting Fong Foo v. United States, 369 U.S. 141, 143 (1962)).
22. Charles William Hendricks, 100 Years of Double Jeopardy Erosion: Criminal Collateral Estoppel Made Extinct, 48 Drake L. Rev. 379, 381 (2000).
23. Hogg, 118 N.H. at 265.
24. Hendricks, supra note 22, at 381.
25. Gould, 743 A.2d at 302.
26. John E. Theuman, Annotation, Former Jeopardy as Bar to Retrial of Criminal Defendant After Original Trial Court's Sua Sponte Declaration of a Mistrial, 40 A.L.R. 4th 741 (2000).
27. N.H. CONST. pt. 1, art. 16.
28. State v. Goodwin, 116 N.H. 37, 38 (1976).
29. Id.
30. Id.
31. See id.
32. Id.
33. State v. Scarlett, 121 N.H. 37, 39 (1981).
34. Id. at 38.
35. Id. at 39.
36. Id.
37. Id. at 38.
38. State v. McNally, 122 N.H. 892, 895 (1982).
39. Id.
40. State v. Constant, 135, N.H. 254, 256 (1992).
41. Compare State v. Goodwin, 116 N.H. at 38, with State v. Constant, 135 N.H. at 257.
42. Id.
43. Id. at 258.
44. See, e.g., Arizona v. Washington, 434 U.S. 497, 504 (1977); Hogg, 118 N.H. at 267.
45. Hogg, 118 N.H. at 264.
46. Washington, 434 U.S. at 504.
47. Id.
48. Id.
49. Hogg, 118 N.H. at 264.
50. Id.
51. Id. at 267.
52. Green v. United States, 355 U.S. 184, 187-88 (1957).
53. Washington, 434 U.S. at 503.
54. Brady v. Samaha, 667 F.2d 224, 228 (1st Cir. 1981).
55. Id.
56. See, e.g.,id. at 229.
57. See, e.g., id. at 231.
58. State v. Duhamel, 128 N.H. 199, 202 (1986).
59. State v. Montella, 135 N.H. 698, 701 (1992). (The defense filed a motion to dismiss based on the State's witness making reference to previously suppressed evidence. The trial court denied the defendant's motion to dismiss with prejudice and the Supreme Court of New Hampshire authorized an interlocutory appeal).
60. Id.
61. Id.
62. Id. at 700.
63. See Bertrand, 133 N.H. at 852.
64. King, 131 N.H. at 176.
65. Gould, 743 A.2d at 302.
66. Id. (barring retrial of defendant charged with felonious sexual assault); State v. King, 131 N.H. 173, 178 (1988) (barring retrial of defendant charged with aggravated felonious sexual assault); State v. Pugliese, 120 N.H. 728, 730 (1980) (barring retrial of defendant charged with homicide); State v. Paquin, 140 N.H. 525, 529 (1995) (barring retrial of defendant charged with selling cocaine).
67. Gould, 743 A.2d at 303.
68. Washington, 434 U.S. at 506 (upholding the trial court's mistrial ruling on account of the fact that the defense counsel made prejudicial comments during his opening statement).
69. Washington, 434 U.S. at 505.
70. Id.
71. Id. at 506.
72. Id.
73. See id. at 515.
74. Id.
75. King, 131 N.H. at 176.
76. Id. at 178.
77. Id.
78. Id. at 175.
79. Id.
80. Id.
81. Id. at 177.
82. Id. at 178.
83. Washington, 434 U.S. at 506 (quoting United States v. Perez, 9 Wheat. 579, 580 (1824)).
84. Id. at 514.
85. See id.
86. State v. Pond, 133 N.H. 738, 770 (1990).
87. United States v. Jorn, 400 U.S. 470, 481 (1971).
88. Id.
89. Brady, 667 F.2d at 224. (Defendants sought federal appellate relief from the District of New Hampshire); United States v. Simonetti, 998 F.2d 39 (1st Cir. 1993).
90. Brady, 667 F.2d at 230; Simonetti, 998 F.2d at 41.
91. Brady, 667 F.2d at 227.
92. Id.
93. Id. at 231.
94. Id. at 229.
95. Simonetti, 998 F.2d at 40.
96. Id. at 41.
97. Id.
98. Id. at 42.
99. Id. at 41.
100. Id. at 42.
101. Bertrand, 133 N.H. at 852; King, 131 N.H. at 173.
102. King, 131 N.H. at 176.
103. Id.
104. Id. at 178.
105. Id. at 176.
106. Id. at 178.
107. Gould, 743 A.2d at 302.
108. See Brady, 667 F.2d at 229.
109. Gould, 743 A.2d at 303.
110. Id.
111. Id.
112. Id.
The Author
Angela M. Thibodeau,Class of 2002,
Franklin Pierce Law Center,
Concord, New Hampshire.
The Author
Julie-Anne Blanchard,Class of 2002,
Franklin Pierce Law Center,
Concord, New Hampshire.

 

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