Jury disqualification mistrial

On May 29, 7:06 am, s...@panix.com (Seth) wrote:
> In article <uu2g53dl47tatvaopkdncadf5f86a3g...@4ax.com>,
> Mike Jacobs  <mjacobs...@gmail.com> wrote:
>
> >no choice but to dismiss you, but they will be stuck with a short
> >jury panel (if the parties agree to go ahead anyway) or the judge may
> >have to declare a mistrial and start over again with voir dire of a
> >whole new prospective jury panel.  If it's a criminal trial, that may
> >require a dismissal of the charges, if the jury you sit on has
> >already started to hear the evidence, due to the constitutional
> >prohibition on "double jeopardy".
>
> I don't understand that one.
>
> First, juries tend to have alternates, in case some juror can't
> continue.

Sure, Seth's right about that.  And I left out that element to avoid a longer, more complicated discussion than was necessary to address OP's main point.  But since you raise the issue, what if one of the _other_ jurors gets sick, or is stuck in traffic or in a car wreck on the way to court the next day, or has also hidden some reason why he should not have been chosen in the first place, or unable to serve for some other reason?  That, of course, is why the judge usually chooses some alternates, but if OP hides his disability (assuming it is one, for purposes of this discussion, and that it would in fact have been grounds to disqualify him for cause) then he will have reduced the depth of that "safety cushion" and may, eventually, be _one_ of the causes (along with all the other jurors who copped out) of winding up with a short jury.   AFAIK there is no hard and fast rule about the number of alternates, and a judge will typically follow his or her instincts about how long a trial is likely to take, and how difficult a retrial would be, in deciding how many alternates to pick.

But that still doesn't make it OK for OP to hide his disability.  Why wouldn't it also be OK for 12 or 14 other people on that jury to do the same thing?  Kant's categorical imperative mandates that you think of the consequences that would happen if everyone were to take whatever action is being considered, in order to determine whether one has a moral right to do that thing.  Put another way, "Do unto others as you would have them do unto you."  Saying that it's OK for OP to do that as long as there are still enough alternates and "no harm, no foul", is carving a special exception contrary to that principle.   You wouldn't expect a baseball team to be happy if half of its relief pitchers were redshirted, as long as everyone in the starting rotation is still OK?  Depth is important, and the longer the trial goes on, the bigger will have been the waste of everyone's time (including the remaining jurors) if juror after juror drops out (it does happen) and OP's hidden grounds for disqualification winds up costing a mistrial, even if retrial is permitted.  IMO the net effect on reducing the depth of the available jury panel is the same, whether OP was originally selected as a main juror or as an alternate.

> Second, I don't believe that a mistrial caused by lack of jury causes
> a double jeopardy issue preventing a new trial.  That would give much
> too great an incentive for a defendant to have a couple of jurors
> eliminated after the trial starts.

Um, no, that wouldn't happen, because if misconduct by the defense is the cause of the mistrial, double jeopardy does not prevent a mistrial.   Keep in mind I was just raising possibilities, things that "may" happen -- realistic guesses IMO, but not foregone conclusions that "must" happen.   A mistrial may or may not occur in a particular case, and if it does double jeopardy may or may not prevent a mistrial, but all of these are risks that OP's misconduct (if he were to hide his disability) would make worse.

To summarize the law on double jeopardy in event of a mistrial, I think the following brief quote from a Georgetown Law Journal article by Johnson et al., June 1988, is helpful:

"Attachment of Jeopardy. The Double Jeopardy Clause bars a second prosecution only if jeopardy attached in the original proceeding. In a criminal proceeding, attachment occurs when the defendant faces the risk of a determination of guilt.1453 Consequently, jeopardy attaches in a jury trial when the jury is empaneled and sworn,1454 and in a bench trial when the judge begins to hear evidence.1455 Thus, the Double Jeopardy Clause allows the government to appeal pretrial dismissals of indictments because jeopardy has not yet attached.1456 In most civil actions, jeopardy attaches when the government collects the penalty.1457

"Retrial Following Mistrial. The Double Jeopardy Clause allows retrial following a mistrial when, "taking all the circumstances into consideration, there is a manifest necessity for ... [declaring a mistrial], or the ends of public justice would otherwise be defeated." 1458 The Court has declined to articulate a precise definition of "manifest necessity."1459 The circuits, however, have interpreted this standard to allow retrial if the mistrial is based on the trial judge's finding that the jury is deadlocked,1460 biased, or unduly influenced.1461 Courts have also found manifest necessity when the behavior of the defendant1462 or her counsel1463 triggered the mistrial."

(Footnotes omitted).   See:

 http://findarticles.com/p/articles/mi_qa3805/is_199806/ai_n8790670

So, does that help clarify what I was talking about?

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