Defense Motion for Mistrial Doesn’t Equal Waiver of Double Jeopardy Protection

Goad (verb) – to provoke or annoy (someone) so as to stimulate some action or reaction.

Usually if a defendant (or his attorney) moves for a mistrial and the motion is granted, a new trial will commence without a violation of double jeopardy. The defense motion is deemed a waiver to double jeopardy protection. However, that is not always the case.

Retrial can be prohibited on double jeopardy grounds if the prosecutor goads the defendant into moving for a mistrial. Duncan v. State, 525 So.2d 938 (Fla. 3rd DCA 1988). If the prosecution were allowed to goad the defense into moving for mistrials, that would essentially be allowing them to shop for a more favorable trier of fact or obtain an unwarranted preview of the defense’s evidence or defense strategy.

So if the trial is underway and there are grounds for a mistrial, suggest (when appropriate) that the prosecution goaded you into making the motion. The judge may agree with you! If she does, your case is over and you cannot be tried for it again because jeopardy attached.

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