Q: Charges include arson and murder, but the jury could not reach a unanimous verdict. Mistrial declared and now the prosecution says they will retry the matter. Are we going to go through the same thing again?
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P.L., Pasaldena
A: The prosecution can retry on the same charges after there is a mistrial declared because of a hung jury. Since there was no verdict, acquittal or guilty, the doctrine of double jeopardy is not available.
New witnesses can be brought forward, but presumably, the defense has discovery rights before the retrial just as at presentation of the initial case. A witness from the first trial might even change or modify his or her testimony from the initial trial, but the defense is entitled to show the inconsistency with the prior testimony (this applies to the prosection as well).
There are a number of considerations that arise as to whether to retry a case. One for certain is economics. Another is if the prosecutor feels very strongly that effort to obtain conviction is truly important. Yet another is if someone was not available to testify at the first proceeding.
Q: If a case is retried, is it the same judge?
F.R., Inglewood
A: It would seem logical that the same judge would handle retrial of the same case. Nonetheless, a different judge can be assigned. This could be caused by issues of availability, case management considerations, and the policy or policies of the court itself. In turn, you are not mandated to have the same lawyer, although doing so may be sensible because of his of her knowledge of the various pieces of the puzzle.
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Q: At a retrial of a case, can the jurors be told about what happened in the first trial?
T.S., Los Angeles
A: The retrial is “de novo,” which means it is new, from start to finish. The jurors should not be told, shown given suggestions about what happened “that other time.” But, if a witness from the first trial gives testimony that contradicts his or her testimony in the first trial, that kind of inconsistency, which reflects on the witnesses’ credibility, is fair game.
Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
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