Mistrial. Before ordering a mistrial, the court must give each defendant and the government an op- portunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives. (Added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 29, 2002, eff. Dec. 1, 2002.) NOTES OF ADVISORY COMMITTEE ON RULES—1993 Rule 26.3 is a new rule designed to reduce the possibil- ity of an erroneously ordered mistrial which could produce adverse and irretrievable consequences. The Rule is not designed to change the substantive law gov- erning mistrials. Instead it is directed at providing both sides an opportunity to place on the record their views about the proposed mistrial order. In particular, the court must give each side an opportunity to state whether it objects or consents to the order. Several cases have held that retrial of a defendant was barred by the Double Jeopardy Clause of the Con- stitution because the trial court had abused its discre- tion in declaring a mistrial. See United States x. Xxxxx, 913 F.2d 1305 (8th Cir. 1990); United States x. Xxxxx, 917 F.2d 388 (9th Cir. 1990). In both cases the appellate courts concluded that the trial court had acted precip- itately and had failed to solicit the parties’ views on the necessity of a mistrial and the feasibility of any al- ternative action. The new Rule is designed to remedy that situation. The Committee regards the Rule as a balanced and modest procedural device that could benefit both the prosecution and the defense. While the Xxxxx and Xxxxx decisions adversely affected the government’s interest in prosecuting serious crimes, the new Rule could also benefit defendants. The Rule ensures that a defendant has the opportunity to dissuade a judge from declaring a mistrial in a case where granting one would not be an abuse of discretion, but the defendant believes that the prospects for a favorable outcome before that particu- lar court, or jury, are greater than they might be upon retrial. COMMITTEE NOTES ON RULES—2002 AMENDMENT The language of Rule 26.3 has been amended as part of the general restyling of the Criminal Rules to make Page 107 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 27 them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
Mistrial. In the event that there is a mistrial declared by the Trial Court at any stage of the Trial, and the mistrial is not the result of any misconduct by Xxxxxxx, his attorneys, his witnesses, or his experts, then either Xxxxxxx or Spectranetics may send a notice to the other within 10 business days of the declaration of the mistrial, stating that this Agreement is null and void ab initio. In the event that there is a mistrial declared by the Trial Court at any stage of the Trial, and the mistrial is the result of any misconduct by Xxxxxxx, his attorneys, his witnesses, or his experts, then Spectranetics may send a notice to Xxxxxxx within 10 business days of the declaration of the mistrial, stating that this Agreement is null and void ab initio. The effects of declaring this Agreement void ab initio will include: the voiding of the releases provided in Section 6, the revival of the Xxxxxxx’x Indemnification Rights and Spectranetics’ Clawback Rights.
Mistrial. Before ordering a mistrial, the court shall pro- vide an opportunity for the government and for each defendant to comment on the propriety of the order, including whether each party con- sents or objects to a mistrial, and to suggest any alternatives. (Added Apr. 22, 1993, eff. Dec. 1, 1993.) Notes of Advisory Committee on Rules—1993 Rule 26.3 is a new rule designed to reduce the possibil- ity of an erroneously ordered mistrial which could produce adverse and irretrievable consequences. The Rule is not designed to change the substantive law gov- erning mistrials. Instead it is directed at providing both sides an opportunity to place on the record their views about the proposed mistrial order. In particular, the court must give each side an opportunity to state whether it objects or consents to the order. Several cases have held that retrial of a defendant was barred by the Double Jeopardy Clause of the Con- stitution because the trial court had abused its discre- tion in declaring a mistrial. See United States x. Xxxxx, 913 F.2d 1305 (8th Cir. 1990); United States x. Xxxxx, 917 F.2d 388 (9th Cir. 1990). In both cases the appellate courts concluded that the trial court had acted precip- itately and had failed to solicit the parties’ views on the necessity of a mistrial and the feasibility of any al- ternative action. The new Rule is designed to remedy that situation. The Committee regards the Rule as a balanced and modest procedural device that could benefit both the prosecution and the defense. While the Xxxxx and Xxxxx decisions adversely affected the government’s interest in prosecuting serious crimes, the new Rule could also benefit defendants. The Rule ensures that a defendant has the opportunity to dissuade a judge from declaring a mistrial in a case where granting one would not be an abuse of discretion, but the defendant believes that the prospects for a favorable outcome before that particu- lar court, or jury, are greater than they might be upon retrial.
Mistrial. Before ordering a mistrial, the court shall pro- vide an opportunity for the government and for each defendant to comment on the propriety of the order, including whether each party con- sents or objects to a mistrial, and to suggest any alternatives. (Added Apr. 22, 1993, eff. Dec. 1, 1993.) Rule 26.3 is a new rule designed to reduce the possibil- ity of an erroneously ordered mistrial which could produce adverse and irretrievable consequences. The Rule is not designed to change the substantive law gov- erning mistrials. Instead it is directed at providing both sides an opportunity to place on the record their views about the proposed mistrial order. In particular, the court must give each side an opportunity to state whether it objects or consents to the order. Several cases have held that retrial of a defendant was barred by the Double Jeopardy Clause of the Con- stitution because the trial court had abused its discre- tion in declaring a mistrial. See United States x. Xxxxx, 913 F.2d 1305 (8th Cir. 1990); United States x. Xxxxx, 917 F.2d 388 (9th Cir. 1990). In both cases the appellate courts concluded that the trial court had acted precip- itately and had failed to solicit the parties’ views on the necessity of a mistrial and the feasibility of any al- ternative action. The new Rule is designed to remedy that situation. The Committee regards the Rule as a balanced and modest procedural device that could benefit both the prosecution and the defense. While the Xxxxx and Xxxxx decisions adversely affected the government’s interest in prosecuting serious crimes, the new Rule could also benefit defendants. The Rule ensures that a defendant has the opportunity to dissuade a judge from declaring Page 91 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 27 a mistrial in a case where granting one would not be an abuse of discretion, but the defendant believes that the prospects for a favorable outcome before that particu- lar court, or jury, are greater than they might be upon retrial.
