Tuesday, December 25, 2007

Nebraska Supreme Court rules that Double Jeopardy Clause prevented retrial of assault defendant whose judge recused himself from the first bench trial after starting to hear testimony and declared a mistrial. State v. Jackson, S-07-084, 274 Neb. 724The State has the burden to show that it was manifestly necessary to allow a retrial after the mistrial. we cannot determine whether the judge exercised sound discretion in calling the mistrial because of the inadequacy of the record as to the underlying reasons for the decision. Because of the constitutional implications, the State bears the burden of demonstrating the manifest necessity of a mistrial declared over the objection of the defendant in a criminal case. See Arizona v. Washington, 434 U.S. 497, 98 S . Ct. 824, 54 L. E d. 2d 717 (1978){necessity for the retrial must appear in the record, although explicit findings are not required}; The State cannot meet this burden by simply requesting the court to make a general finding of manifest necessity, as it did here, without a factual record to support the finding. Where the reason for a mistrial is not clear from the record, the uncertainty with respect to manifest necessity must be resolved in favor of the defendant

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