Retrials -- who has the advantage, prosecution or defense

More specifically, is there a majority view among those in the legal professions that in general one side has an advantage during retrials (after a hung jury or other mistrial)?

Obviously, individual cases will differ especially if one side made easily correctable mistakes.

Depending on circumstances, in a criminal trial it should probably be the prosecution. That’s because in the typical case, the government has to turn over all the exculpatory evidence it has to the defense. Whereas the defense doesn’t have to tell the government anything. So in the case of a retrial, theprosecution will know more about the defense’s case than it would have previously, whereas the defense probably doesn’t know so much more than it did before.

That’s totally theoretical on my part. I’ve never done criminal work and I’ve never been involved in a mistrial. Someone with ciminal experience might have a more educated view.


That’s odd - I quite like Law & Order, and whenever a mis-trial is declared the defendant sighs with relief and hugs his lawyer while Asst. D.A. Jack McCoy clenches his jaw and looks all indignant.

Well, yeah. New trials are expensive, and once a mistrial is declared, McCoy’s boss may decide that it’s no longer worth the budget, the hassle or the manpower to mount a new prosecution.

Nah, he’s just constipated…plus, I think he only gets laid when he wins a case so… :wink:

Perhaps one of our legal experts like Campion will come along and give an offical clarification, but it’s not true that the defense doesn’t have to reveal anything. They are required, for instance, to hand over records that are subpenaed, of course, and I don’t think they can withhold evidence that would be exculpatory to another party, but per the Fifth Amendment they do not have to submit any evidence or testimony which is otherwise self-incriminating. (I’m not sure about physical evidence obtained by the defense counsel; it would seem that failing to disclose, say, a videotape of the defendant committing the act of which he is accused is tantamount to accessory after the fact, attourney-client privildge notwithstanding, but I could certainly be mistaken.) It would be improper and probably suborning to present a theory that the defense knows (i.e. has evidence that) is untrue. Clearly, though, in a world where we argue what the definition of “is” is, there is a lot of murky greyness.

One thing to bear in mind is that the defense has the bear the cost of each trial, and unless they are very rich or are willing to use a public defender, will probably be bankrupt after the first trial, whereas the prosecution can dip into the public purse indefinitely. So the defense might have much poorer representation in subsequent trials, unless, as with the case of Sam Sheppard, you are able to attract the attention of an up-and-coming criminal defense attourney who is willing to work pro bono and pony up for expert witnesses and investigators in order to get publicity and reputation.

Also, new evidence or witnesses may step forward in time. While this could be an advantage to either side, for the prosecution this is effectively meaningless if they’ve lost the case initially, whereas if exculpatory evidence is uncovered later they can always request an evidentiary hearing to request habeas relief.

So, on the whole, I’d guess that the prosecution probably gets the better end of the deal. But I think both parties would rather have the case settled (albeit, in their favor) the first time around.


But if it’s a re-trial ordered by the appellate court on a defence appeal, presumably the defence will have some advantage, because the appellate court has found against the prosecution on some point - hence the re-trial. For example, the appellate court may find that the trial judge erred in admitting some of the prosecution evidence, or in allowing a certain line of questioning. If that erroneous evidence or questioning was so important that it warranted setting aside the guilty verdict, then presumably its absence at the re-trial will hurt the prosecution’s case.

If the case was properly investigated the first time around, I’d be surprised if much new evidence will be uncovered (unless that was the basis for the appeal, of course).

I’d say a more likely problem would be evidence disappearing, in the form of witnesses that can’t be found. The appellate process will take several months, at least, and in a typical case there are usually witnesses who aren’t all that keen on testifying in the first place. Once the first trial’s over, their instinct may be to disappear, possibly out of concerns for their own safety. Plus, witnesses die, or memories fade, particularly with elderly witnesses.

Loss of witnesses will normally favour the defence - they only need to poke holes in the prosecution case, whereas the prosecution needs to build its case beyond a reasonable doubt. The loss of one witness may not be fatal to the defence, but could well make the Crown’s case difficult if not impossible to put forward again.

I’m in with Cliffy (who I want to be when I grow up) and Northern Piper (who I want to be if I grow up Canadian). Retrials generally seem to favor the prosecution, if for no other reason than because the defense has revealed their strategy (something they didn’t need to do ahead of trial, or sometimes, even during the first half of trial), and forewarned is forearmed. Knowing what the defense plans to argue (the man with one arm did it, for example), the prosecution can be much more proactive in rebutting the defense theory, by introducing more “rebuttal” evidence in their case in chief.

Northern Piper adds a good point, however: if the appellate court rules that the government’s interpretation of the law, or their “novel” legal theory doesn’t hold water, the defense could be in an even stronger position. Also because stale evidence favors the party without the burden, lapse of time while an appeal works through the system favors the defense in general.

I should add a caveat. For those not following my stellar career as a criminal defense attorney, I must reiterate that my only experience thus far is in defending family members, which (fortunately) means that I have almost no experience in the criminal courts. Nevertheless, I soldier on.

Stranger, a couple of points of clarification. First, the Fifth Amendment protects one only from “testimentary” self-incrimination. For example, although a blood sample would tend to incriminate a drunk driver, a suspect/defendant can still be compelled to give blood. This is not testimony, and does require the defendant, potentially, to self-incriminate. Nevertheless, it is constitutional.

Also, you are correct that neither side – the defense nor the prosecution – can put on a case or present a theory they know to be false. Recently, this caused problems for a prosecution for the murder of a man killed with one bullet. Not knowing which of two men killed the victim, the prosecution prosecuted each separately as the lone gunman. The appellate court noted that the prosecution had to know that at least one prosecution was false (because they knew there could only have been one gunman) and therefore ordered a retrial. Notably, the prosecution has a greater burden in this regard than the defense. If defense counsel knows the defendant killed the victim, a vigorous defense can still be mounted (you just can’t suggest someone else did it – but you can argue that the prosecution can’t prove your guy did). The prosecution, by contrast, must actually believe in what they’re presenting; if they’re uncertain of guilt, they can’t present.

One last thing, Stranger: there was an intimation in your post that a defendant bankrupted by an initial trial, and forced to use a public defender in a retrial, may be worse off because of a decline in quality of representation at the retrial. Studies have shown that PDs are in general as good as their private counterparts: some are good, and some are bad. In addition, we’re spoiled a bit with the recent spate of celebrity trials in California (yes, I’m a bit bereft right now – not even a jaywalker to try? could Tom Sneddon develop a new bete noir?) and the concomitant celebrity attorneys. Mark Geragos and Tom Mesereau are superb attorneys, but most people can’t afford them. Most people with some money will hire just some guy to defend them. The guy may be good, or not. It really is a crapshoot unless you are fabulously wealthy and can command the top tier of talent.

Finally, as to my favorite documentary, Law and Order, I suspect McCoy looks pissed because he just wasted X number of days on this crap, and now he’s going to have to do it all over again. He may win, but what about all the other cases on his desk he has to deal with? Oh, wait. He only has one at a time. That he can spend months on. To the exclusion of all other work. Never mind.

Would the defendant or defense counsel be required to hand over incriminating physical evidence; i.e. the weapon used in a murder, even if the defense did not specifically subpena it? Per Miranda (as my nonlegal mind comprehends it) they can’t be compelled to disclose the location of evidence during an interview or to otherwise confess to a crime or to material involvement in a crime. How far does that protection go?

We always hear so much about how overworked and understaffed public defenders are, and how many are the bottom of the barrel of talent, but I’ll own up to not having any direct experience with that whatsoever, so that may be a complete misapprehension.

Without going into any details, there’s a co-worker of mind whose (adult) child committed a very, very serious crime recently. There really wasn’t any question about the culpability; not only did the accused volunteer multiple confessions to the police but ___ also discussed the salient details with the parents in front of the investigators, then went home on ROR and called up friends and related details of the crime. (The phone was, of course, lawfully tapped, which is why they released the accused to begin with.) So the prosecution had ample evidence with which to convict, and the best the defense could do is ask for leniency in sentancing. Nonetheless, my coworker and CW’s spouse spent a fantastic amount of money to hire a defense attourney and were subsequently frustrated that the attourney’s efforts didn’t get the accused “off”. It was neither my place to offer unsolicited advice or legal acumen regarding the case, but all along I suspected that they would have done just as well to get a PD and plead out.

[rant]And man, did and do I get sick of hearing about this deal; I tried to maintain distance and not make any but the most superficial and polite inquiries, but anytime I interact with this coworker, they have to give me the full scoop including how badly the (now convicted) has it in prison and how unfair the trial and conviction was, et cetera. I feel badly for the coworker and family in an abstract sense–nobody wants their child to be convicted of a felony and spend decades in prison–but it’s hard to be too sympathetic given the blatant and admitted culpibility in the crime and subsequent efforts to conceal involvement and justify the (totally unjustifiable) act, and the absolute stupidity the accused demonstrated in dealing with authorities. [/rant]

I love that…he’s never late to court 'cause he had a conflicting arraignment hearing, and whenever he needs investigators he just calls up the Sixth Precinct and the same two cops drop everything to go out and do his bidding. And he must get his pick of incoming ADA’s. :wink: And they do trim away the most tedious details of the trial and trial preparations; we’re never privy, for instance, to the jury selection process. I’m guessing that would probably break the dramatic tension. :dubious:


Huh. So my clever plan to avoid answering the questions I don’t know the answer to has been revealed? Drat. Let’s hope that Bricker wanders by; if not, I’ll take a look tomorrow. This is an interesting area of the law, because the question is whether responding to a subpoena that says, “turn over the gun,” becomes testimony; that is, by turning over the gun, are you testifying that, in fact, this is the gun. And thereby self-incriminating. Frankly, though, I don’t even remember whether the prosecution can subpoena evidence from the defense. I suspect not. It’s been way too long since I studied it, but I’ll look tomorrow if the more experienced folk haven’t already answered it.

By the way, I understand you’re using “Miranda” as a proxy for “Fifth Amendment rights.” Miranda itself merely holds that a person in custody must be advised of certain of their Fifth Amendment rights, i.e., to counsel and against self-incrimination.

As a bit of trivia, when Miranda was decided, law enforcement went a bit ballistic and campaigned to have it overturned or legislated around. Having to advise suspects of their rights, they argued, would unbalance the system: people would invoke their rights, wouldn’t confess, they’d have to be put out on the street again to rape and murder and pillage, trials (if any occurred) would take forever, and civilization would decline as a result. Now, of course, law enforcement is a huge proponent of Miranda, because by reciting the litany, which most Americans are inured to due to constant exposure to it on televion (where no one ever seems to invoke their rights), the police still manage to get confessions, and almost all of the confessions are deemed admissible.

Jury selection can be quite dramatic; last trial I worked on, a juror cried during voir dire because she had to answer some questions that were quite emotional for her. But remember that L&O: Trial by Jury was purportedly to be about the fullness of a trial. And look how well that did. I think I made it about ten minutes through an episode before I realized that it was complete and utter schlock, with caricatures instead of characters, and tired old cliches instead of actual story lines.

I’m a role model!

I’m so flattered! :o

I feel so old! :eek:

That aside, since I’ve carelessly blown my cover by referring to the Crown in one of my posts, I should mention that the analysis of this question is more difficult in Canada, since the Crown can appeal an acquittal, even a jury acquittal. So what I said about the defence benefiting on re-trial if the appellate court allows the defence appeal applies just as much to the Crown on a successful Crown appeal.

For example, earlier this week the Supreme Court of Canada allowed the Crown appeals in these two cases: R. v. Orbanski; R. v. Elias. Both were routine road-side stops where the accused ended up charged with drunk driving. The trial judges in the two cases excluded the evidence of the conversations that the police had with the two drivers, and field sobriety tests in one case, on the basis that they were detained when the police pulled them over and had a right to call their lawyer, at the roadside. Without that evidence, the two were acquitted.

The Court has ordered new trials, at which that evidence will now be admissible. So on those cases, it looks like the Crown is favoured at the re-trial. (On the other hand, the defence may have other arguments to make that they never had to advance at the first trial, so who knows?)

Overall, in a system that has both Crown and defence appeals, I don’t think you can have a hard-and-fast assessment as to which side is favoured on a re-trial. It depends very much on the context. Overall, I think the edge may go to the prosecution, because of the disclosure of the defence case that others have referred to.

This presents legal and ethical issues for the lawyer.


In other wrds, the lawyer can’t be a hiding place for the client’s evidence, but must try to keep the client’s confidences secret.

Second, helping the client hide evidence subjects the lawyer to criminal liability.

So the lawyer has to turn over the evidence, even without a subpoena.

Don’t know how I missed this thread …

The general proposition is that the lawyer may not reveal inculpatory information he learns as a result of his representation of a client. If he takes notes during a client meeting, those notes are considered attorney work product, and may not be turned over, even under subpoena.

The situation changes a bit with actual physical evidence of a crime - the murder weapon, as SOAT posits above. In such cases, the attorney who has actual possession of such evidence is required to turn it over to the police, but he may not reveal how it came into his possession.

I imagine we could create a scenario in which that duty would severly damage client confidentiality… if the murder weapon is a letter opener engraved with “Gratefully Presented to Jack Jones, In Recognition of Faithful Service,” then the revelation of the murder weapon to police could certainly point the finger at client Jack Jones.

But if a lawyer is actually given the material, he must turn it over. If he merely observes it in situ, he may remain silent about it.

It’s a misapprehension. Most PDs have more trial experience than many inexpensive private attorneys. Most of them are overworked, yes, but they also know the system and they know how tro not get steamrollered by the prosecution.

Of course there are bad apples in any barrel. But the PD route is generally a good one.

To the OP:

It’s probably not a very meaningful question to ask generically which side is favored by a mistrial. Give no other facts, I’d agree with **Cliffy ** et al. that the prosecution is slightly favored. Problem is those messy facts. Once you add the facts of the case into the mix, the advantages and disadvantages that they reveal will outweigh any basic advantage. And I’m not talking about retrial after an appeal either. Very often a reversal on appeal effectively ends the case. That’s because in order to reverse, the appellate court has already decided that the error made in the trial court probably effected the result (appellate courts do not reverse if the error was harmless).

While witnesses may disappear, their testimony from the previous trial is admissible at the new trial.

If they do testify, their prior testimony is admissible if it is inconsistent with the witness’s testimony at the retrial.

This cuts both ways, though. If the prosecution tries to fondle a witness’s testimony in order to address a “surprise” defense, the prosecutor will have to work around the witness’s prior testimony. Many defenses are no longer surprises, BTW, because modern criminal procedure rules require disclosure of the defense before trial. E.g., Fed. R. Crim. P. 12.1-12.3 (requiring pretrial disclosure of alibi, insanity, and public authority defenses) and other aspects of the defense will probably be revealed in pretrial motions.

Newly discovered evidence is not grounds for a retrial unless the lawyer has a good reason for not discovering it the first time around, so it is unlikely to be of much help.

So it really depends on who is on the jury and what the witnesses say.