Double Jeopardy Cases In Georgia
The primary purpose of the Double Jeopardy Clause is to prohibit the retrial of a criminal defendant where the prosecution has, at the initial trial, produced insufficient evidence to sustain a conviction. See, e.g., Burks v. United States, 437 U.S. 1 (98 S. Ct. 2141, 57 L. Ed. 2d 1) (1978); Williams v. State, 258 Ga. 305, 311 (369 S.E.2d 232) (1988).
"The general rule is that retrial of the defendant is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency." Id.
In general when a defendant makes a motion for a mistrial he waives any claim of double jeopardy. Id.
But, where the prosecutor has goaded the defense into making a motion for a mistrial in order for the prosecution to avoid reversal of the conviction because of prosecutorial or judicial error or to otherwise obtain a more favorable chance for a guilty verdict on retrial, the Double Jeopardy Clause will stand as a bar to retrial. Id. See also Oregon v. Kennedy, 456 U.S. 667, 676 (102 S. Ct. 2083, 2089, 72 L. Ed. 2d 416) (1982).
The Supreme Court of Georgia has adopted the test set out in Oregon, supra. Beck v. State, 261 Ga. 826 (412 S.E.2d 530) (1992).
The inquiry is whether the prosecutor intended to goad the defendant into moving for a mistrial and thus terminate the trial.
What is critical is the objective of the prosecutor's conduct. Unless a prosecutor is trying to abort the trial, his or her misconduct will not prohibit a retrial. Oregon, supra; Mosley v. State, 230 Ga. App. 890, 891 (497 S.E.2d 608) (1998).
The question of whether the prosecutor intended to goad the defendant into moving for a mistrial is a question of fact for the trial court to resolve. Ward v. State, 230 Ga. App. 581, 582 (497 S.E.2d 65) (1998).
The Supreme Court, in concluding that a standard that examines the intent of the prosecutor has some difficulties but is still manageable, stated:
"It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system." Oregon, supra at 675.