Criminal Retrial

Criminal cases allow for a retrial in rare cases. Certain standards must be met before a criminal retrial can be granted. The case must pass the U.S. Constitutional 5th Amendment of Double Jeopardy requirement to qualify for a retrial. The general rule is that you cannot be prosecuted more than once for the same crime.

When Is a Criminal Retrial Available?

In U.S. law, double jeopardy does not attach until the jury is sworn in a jury trial or until the first witness is sworn in a bench trial. For instance, if a judge dismisses a prosecution based on lack of evidence at a preliminary hearing, this decision does not bar the government from initiating new charges for the same offense since jeopardy will not have attached at that point.

The following instances can give rise to a criminal retrial:

• When the judge declares a mistrial;
• After an appellate court reverses a conviction from the trial court;
• Attorney misconduct;
• Judicial misconduct.

Furthermore, a trial de novo refers to starting with a clean slate, meaning without previous court decisions or assumptions impacting the outcome. However, previous evidence can be utilized. Also, judges hold the authority to grant or deny a trial de novo. In a trial de novo, the case is retried with the presence of a bench trial, depending on what the court decides.

What Is the Difference Between an Appeal and a Criminal Retrial?

An appeal is not a retrial but a review of the facts presented in the trial court. The record includes all pre-trial and post-trial motions, all evidence admitted to the court, and a word-for-word transcript of the trial.

Additionally, it consists of analyzing the record and written briefs submitted by both parties. The appellate briefs frame the legal issues raised on appeal, and the oral arguments set a stage for clarifying the main points in the case. In a criminal case, only the defendant has a right to an appeal in most states.

Only rare cases allow the prosecution this right to appeal based on specific circumstances in the law. Appeals by the prosecution after a verdict is not permitted because of the prohibition in the U. S. Constitution against double jeopardy or being tried twice for the same crime.

Moreover, criminal defendants convicted in state courts have protections extending to the federal level if the right of appeals is exhausted at the state level. They can file a writ of habeas corpus in the federal courts to demonstrate that their federal constitutional rights were violated.

The defendant convicted in a federal trial court may appeal their case directly to the federal appellate court. After this step, they can appeal to the U.S. Supreme Court.

One of the main differences between an appeal and a retrial is the process. For instance, the appeals courts do not consider new witnesses or new evidence. The appeals in both civil and criminal cases are based on arguments that there were errors in the trial procedure or errors in the judge’s interpretation of the law. The judges meet at a conference to discuss the case after the oral arguments have commenced. Appellate courts draft opinions based on any new interpretation of the law, and there are several drafts before one is finalized for the final stage.

Once the majority of judges rule on it, the outcome is announced and there will be some judges dissenting to the majority decision made by the court. Judges disagreeing with the majority opinion may issue a dissenting opinion. Also, judges agreeing with the result of a majority decision but disagreeing with the majority’s reasoning may file a concurring opinion.

However, if the appeals court affirms the lower court’s judgment, the case ends unless the losing party appeals to a higher court. The lower court decision remains current till the appeals court simply dismisses the appeal, most commonly for jurisdiction issues. If the judgment is reversed, the appellate court will send the case back to a lower court, remanding it while ordering the trial court to take further action.

The court may further order:

• A new trial;
• The trial court’s judgment be changed;
• The trial court reconsiders the facts, takes additional evidence, or considers the case in light of a recent decision by
• the appellate court.

How Long Does It Take To Get a Retrial?

Generally, criminal retrials can take several months, depending on the state level and the type of case. If the trial ends in a mistrial, or the court grants a motion for a new trial, the second trial must begin within 70 days “from the date the action occasioning the retrial becomes final.” 18 U.S.C. § 3161(e). This timeline rule only applies to the scenarios mentioned above.

What Else Should I Know About Double Jeopardy?

Double jeopardy means that a defendant cannot be tried or punished for the same offense more than once, as stated earlier. The key determination for deciding if two charges are for the “same offense” is whether each charge requires an element of proof that is not contained in the other.

Additionally, the conviction of a lesser offense bars prosecution of a greater offense for the same conduct, except in limited circumstances.

Double jeopardy applies when new evidence resurfaces, which can alter the defendant’s guilt once the jury has already acquitted him. The prosecution is not permitted to charge them again, even if the evidence indicates that they are more likely to be guilty. Furthermore, once a judge has sentenced a defendant for a crime they have already served, double jeopardy applies and blocks this action. However, this protection applies only to criminal cases; the defendant can be sued for the same conduct in a civil lawsuit.

Besides that, they can also face administrative proceedings arising from the same incident, such as the suspension or revocation of their driver’s license. Remember that double jeopardy does not apply to prosecutions for lesser included offenses if the defendant already has defeated the charge of the more serious offense.

However, if a jury convicts a defendant of multiple charges based on the same conduct, the judge can impose a sentence only for the greater crime. Filing charges do not trigger the rule of double jeopardy. Therefore, it is crucial to understand the criminal stages in your state to determine how your legal rights are protected from being tried for the same offense.

Do I Need a Lawyer for a Criminal Retrial?

If your rights have been violated regarding a criminal trial, you have the right to a retrial. There are some rules regarding this procedure and in what situation it applies. If you have questions regarding your specific case, you can reach out to a local criminal lawyer to help you figure out what your next steps are for filing for a criminal retrial.