A reader has asked me to explain why retrials are allowed. In nonspecific reasoning, retrials are permitted because a court has determined there was a legal error made during the initial trial, or a pretrial event, which infringed on some right, or rights, of the defendant. The court which decided that a prejudicial error occurred will issue an order vacating (reversing, or setting aside) the defendant’s conviction. This could be the original trial court itself or some court conducting appellate review of raised issues.
In most instances where a defendant’s conviction has been vacated, retrial is permitted. This is true regardless of what level of court ordered the reversal or the type of proceeding wherein the reversal order was given. Regardless of where the reversal took place, there are only a few instances when a subsequent retrial would be prohibited. I will discuss some of those instances below.
When a defendant’s conviction is reversed, the reason for a reversal is usually specific to an event which occurred prior to the conviction. A reversal essentially brings a defendant’s case backwards in time to the period just before the error occurred. Any error having a direct impact on the conviction must be corrected in order to ensure the defendant receives a fair trial.
Why a criminal case is vacated
To understand why a retrial is allowed, one must consider why the case was vacated in the first place. When a defendant presents an argument of error for the court to consider, the court looks at the prejudice (harm), or the lack of prejudice (harmlessness), of the raised claim. If the claimed error hasn’t caused prejudice to the defendant, the court will keep the conviction intact. If the claimed error has caused prejudice, it makes a defendant’s conviction questionable. A conviction cannot be sustained when there is a questionable trial outcome.
Every defendant will argue each misstep, regardless of what it was, caused prejudice. But that isn’t the legal standard. It is only errors which call a verdict’s validity into question that are deemed prejudicial. Let’s consider an example of a trial error that courts could view as harmless in one case, but the same error as prejudicial in another.
My harmless error vs a prejudicial error example
Assume two different defendants have been charged with a sexual offense. In each case, a medical expert testified (over counsel’s objection) that the victim was sexually assaulted, albeit no physical evidence supported the expert’s opinion. Rather, the given opinion was formed because of statements provided to the medical expert by the victim. This, in all likelihood, would be impermissible hearsay testimony.
So why could this error be harmless in one case, yet prejudicial in another? Imagine if in defendant A’s case there was a disinterested third party who testified to witnessing the assault, while in defendant B’s case, there wasn’t any witness or other evidence supporting the accuser’s claims.
In defendant A’s case, there exists evidence beyond what the accuser has provided to the jury. So, even absent the expert’s impermissible hearsay testimony, a conviction would still be possible. Meanwhile, for defendant B, whose case contains no evidence beyond the victim’s testimony, it is possible the impermissible hearsay testimony influenced the trial’s outcome.
To be very clear, I am not saying there must be evidence beyond that supplied by an accuser to sustain a conviction. In fact, most child sexual abuse cases result in convictions, and are upheld, without any evidence beyond testimony supplied by the child. See: State v. Merryman, 283 P.2d 239 (Ariz. 1955). The point which I am trying to convey is that, in a case with overwhelming evidence, some trial errors will fail to impact a case’s outcome in comparison to a case where there isn’t corroborating evidence against the defendant.
Why a retrial would be allowed
Using defendant B’s hypothetical case, if the conviction is vacated due to the impermissible hearsay trial testimony, the defendant would be granted a new trial. The conviction’s validity is questionable because the trial testimony was both impermissible and prejudicial.
By granting a new trial, the court resets the defendant’s case to a point in time sufficient to restore the deprived right of the defendant to ensure there is a fair trial.
A retrial is permitted due to counsel ineffectiveness
In the example above, I used impermissible hearsay testimony to be given over effective counsel’s objection. Let’s consider the same case, and set of circumstances, except that counsel failed to object.
Because trial counsel failed to timely object to the impermissible evidence, the defendant could raise trial counsel’s ineffectiveness during a post conviction or state habeas proceeding. If a court thereafter found trial counsel was ineffective for failing to object to the testimony and the testimony was determined prejudicial, a court would vacate the conviction. Vacating the conviction returns the defendant to a point in time to allow the correction of the right to having effective trial counsel. To learn more about ineffective counsel, read my post, what is ineffective assistance of counsel.
The same legal principle applies to a finding of ineffective assistance of appellate counsel. When a post conviction court determines that appellate counsel was ineffective, the corrective action would likely be to order the assignment of new counsel and to permit the filing of a new direct appellate brief.
Other instances where a retrial is permissible
If a jury cannot unanimously agree to find a defendant guilty or not guilty, this is commonly referred to as a “hung jury.” Double jeopardy would not prohibit a retrial because a hung jury does not constitute an acquittal. See: Harrison v. Gillespie, 596 F.3d 551 (9th Cir. 2010).
A retrial is permitted after a conviction is reversed on direct appeal due to trial errors such as the incorrect receipt or rejection of trial evidence, incorrect jury instructions, or prosecutorial misconduct. See: United States v. Brown, 994 F.3d 147 (3rd Cir. 2021).
A retrial is permitted after a defendant requests a mistrial unless the prosecution has “goaded” a defendant into seeking a mistrial. See: Oregon v. Kennedy, 102 S.Ct. 2083 (1982).
When a retrial not permitted
There are circumstances which come to mind where a retrial would be prohibited. First, if a defendant raises an argument on direct appeal that there was insufficient evidence introduced at trial to support a conviction, and the appellate court agrees, the conviction would be vacated and retrial prohibited.
Double jeopardy bars retrial where insufficient evidence was presented to support the guilty finding. See: Donahue v. Cain, 231 F.3d 1000 (5th Cir. 2000). This reasoning justifies, when appropriate, that an argument challenging the sufficiency of evidence should be raised after the prosecution’s case in chief, after the defense rests, or on direct appeal.
Second, collateral estoppel also bars the retrial of any issue of ultimate fact determined by a valid and final judgment. This means a retrial trial is prohibited for any offense where a jury or judge has acquitted the defendant of a charged crime. See: Ashe v. Swenson, 90 S.Ct. 1189 (1970).
This legal concept has specific requirements. Consider the defendant who has assaulted the same person in two different jurisdictions. If the defendant is tried and found not guilty in the first jurisdiction, the defendant could be tried and found guilty in the second jurisdiction.
Noteworthy, double jeopardy does not prohibit a defendant from being found guilty for the same criminal activity by both a state and federal jurisdiction. See: United States v. Ray, 238 F.3d 828 (7th Cir. 2001).
Third, retrial is prohibited when 1) a mistrial is granted because of improper actions on the part of a prosecutor 2) where the conduct is not merely the result of legal error, negligence or mistake but rather of knowing and intentional conduct and, 3) where the defendant suffers prejudice which cannot be cured short of a mistrial. See: Pool v. Superior Court, 677 P.2d 261 (Ariz. 1984).
My closing thoughts
While every case and trial have different events and circumstances, I hope this response somewhat answers my reader’s question as to why retrials are permitted. Furthermore, to give some ideas as to when a retrial would not be permitted.