noting cross-examination of defendant concerning prior robbery conviction was permissible under Rule 609 in light of fact that robbery involves dishonesty
How later courts described this case
- noting cross-examination of defendant concerning prior robbery conviction was permissible under Rule 609 in light of fact that robbery involves dishonesty
- while conduct of prosecutor cannot be condoned, it should not ordinarily bar retrial of charges against defendant
- “Use of the motion for a mistrial is not appropriately addressed to mere erroneous rulings of law, but generally is used to specify such fundamental error in a trial as to vitiate the result.”
- if comments of prosecutor result in mistrial, but do not appear to be the result of a plan or scheme to cause mistrial, such conduct “may be punished ... by enforcing strict attorney discipline in court”
Written by the judges who cited it.
The opinion
SOSA, Chief Justice (dissenting).
The general rule is that a person may be retried after a mistrial is granted at his request. But where the mistrial was caused by bad faith on the part of the prosecutor, there is a double jeopardy bar against retrial. In Day II the Court of Appeals held that the prosecutor’s conduct was “purposeful * * * and could not be rectified by admonitions from the trial court.”
I read Lee v. United States, 432 U.S. 23 , 97 S.Ct. 2141 , 53 L.Ed.2d 80 (1977), as barring reprosecution if the underlying error was “ ‘motivated by bad faith or undertaken to harass or prejudice.’ ” Id at 33, 97 S.Ct. at 2147 .
Prosecutorial over-reaching has been held to be a bar to a second trial. United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976).
I view the prosecutorial misconduct here as both over-reaching and motivated by bad faith, and would therefore reverse.
For the foregoing reasons I respectfully dissent.