MR. JUSTICE STEWART delivered the opinion of the Court.
The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment was violated by the retrial of the respondent after his original trial had ended in a mistrial granted at his request.
The respondent Nathan Dinitz, was arrested on December 8, 1972. following the return of an indictment charging him with conspiracy to distribute LSD and with
The jury was selected and sworn on February 14, 1973, and opening statements by counsel began on the following afternoon. The prosecutor's opening statement briefly outlined the testimony that he expected an undercover agent named Steve Cox to give regarding his purchase of LSD from the respondent. Wagner then began his opening statement for the defense. After introducing himself and his co-counsel, Wagner turned to the case against the respondent:
The prosecutor again objected and the judge excused the jury. The judge then warned Wagner that he did not approve of his behavior and cautioned Wagner that he did not want to have to remind him again about the purpose of the opening statement.
Following this initial incident, the trial judge found it necessary twice again to remind Wagner of the purpose of the opening statement and to instruct him to relate "the facts that you expect the evidence to show, the admissible evidence." Id., at 82. Later on in his statement, Wagner started to discuss an attempt to extort money from the respondent that had occurred shortly after his arrest. The prosecutor objected and the jury was again excused. Wagner informed the trial judge of some of the details of the extortion attempt and assured the court that he would connect it with the prospective Government witness Cox. But it soon became apparent that Wagner had no information linking Cox to the extortion attempt, and the trial judge then excluded Wagner from the trial and ordered him to leave the courthouse.
The next morning, Meldon told the judge that the respondent wanted Wagner and not himself or Baldwin to try the case. The judge then set forth three alternative courses that might be followed—(1) a stay or recess pending application to the Court of Appeals to review the propriety of expelling Wagner, (2) continuation of the trial with Meldon and Baldwin as counsel, or (3) a declaration of a mistrial which would permit the respondent to obtain other counsel. Following a short recess, Meldon moved for a mistrial, stating that, after "full consideration of the situation and an explanation of the alternatives before him, [the respondent] feels that he would move for a mistrial and that this would be in his
Before his second trial, the respondent moved to dismiss the indictment on the ground that a retrial would violate the Double Jeopardy Clause of the Constitution. This motion was denied. The respondent represented himself at the new trial, and he was convicted by the jury on both the conspiracy and distribution counts.
The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense.
Since Mr. Justice Story's 1824 opinion for the Court in United States v. Perez, 9 Wheat. 579, 580, this Court has held that the question whether under the Double Jeopardy Clause there can be a new trial after a mistrial
The distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant's request or with his consent is wholly consistent with the protections of the Double Jeopardy Clause. Even when judicial or prosecutorial error prejudices a defendant's prospects of securing an acquittal, he may nonetheless desire "to go to the first jury and, perhaps, end the dispute then and there with an acquittal." United States v. Jorn, supra, at 484. Our prior decisions recognize the defendant's right to pursue this course in the absence of circumstances of manifest necessity requiring a sua sponte judicial declaration of mistrial. But it is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant's mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause—the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions.
The Court of Appeals viewed the doctrine that permits a retrial following a mistrial sought by the defendant as resting on a waiver theory. The court concluded, therefore, that "something more substantial than a Hobson's choice" is required before a defendant can "be said to have relinquished voluntarily his right to proceed before the first jury."
But here the trial judge's banishment of Wagner from the proceedings was not done in bad faith in order to goad the respondent into requesting a mistrial or to prejudice his prospects for an acquittal. As the Court of Appeals noted, Wagner "was guilty of improper conduct" during his opening statement which "may have justified disciplinary action," 492 F. 2d, at 60-61. Even accepting the appellate court's conclusion that the trial judge over-reacted in expelling Wagner from the courtroom, ibid., the court did not suggest, the respondent has not contended, and the record does not show that the judge's action was motivated by bad faith or undertaken to harass or prejudice the respondent.
Under these circumstances we hold that the Court of Appeals erred in finding that the retrial violated the
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or decision of this case.
MR. CHIEF JUSTICE BURGER, concurring.
I concur fully with MR. JUSTICE STEWART'S opinion for the Court. I add an observation only to emphasize what is plainly implicit in the opinion, i. e., a trial judge's plenary control of the conduct of counsel particularly in relation to addressing the jury.
An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct. Moreover, it is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict.
A trial judge is under a duty, in order to protect the integrity of the trial, to take prompt and affirmative action to stop such professional misconduct. Here the misconduct of the attorney, Wagner, was not only unprofessional per se but contemptuous in that he defied the court's explicit order.
Far from "overreacting" to the misconduct of Wagner,
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs, dissenting.
The Court's premise is that the mistrial was directed at respondent's request or with his consent. I agree with the Court of Appeals that, for purposes of double jeopardy analysis, it was not, but rather that "the trial judge's response to the conduct of defense counsel deprived Dinitz's motion for a mistrial of its necessary consensual character." 492 F.2d 53, 59 n. 9 (1974). Therefore the rule that "a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution," United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion), is inapplicable. Accordingly, I agree that respondent's motion, for the reasons expressed in the panel and en banc opinions of the Court of Appeals, did not remove the bar of double jeopardy to reprosecution in "the extraordinary circumstances of the present case, in which judicial error alone, rather than [respondent's] exercise of any option to stop or go forward, took away his `valued right to have his trial completed by a particular tribunal.' " 504 F.2d 854-855 (1974). I also agree with the holding in the panel opinion that "[i]n view of . . . [the] alternatives which would not affect the ability to continue the trial, we cannot say that there was manifest necessity for the trial judge's actions." 492 F. 2d., at 61. I would affirm.
During the discussion of the incident at the bench. Wagner claimed that, if the description of the man fit Cox, the credibility of the chief Government witness would be placed in doubt. The judge then ordered that the FBI agents be called to determine if the person taking the envelope resembled Cox. When they arrived, Wagner admitted that he had never seen or talked to the agents. The FBI agents later informed the judge in camera that the person who picked up the "bait envelope" containing the fake money bore no resemblance to Agent Cox.
"In order for a defendant's motion for a mistrial to constitute a bar to a later plea of double jeopardy, some choice to proceed or start over must remain with the defendant at the time his motion is made. The dicta from United States v. Jorn . . . does not encompass the extraordinary circumstances of the present case, in which judicial error alone, rather than defendant's exercise of any option to stop or go forward, took away his `valued right to have his trial completed by a particular tribunal.' " 504 F.2d 854-855 (footnote omitted).