Double Jeopardy - First Impaneled Jury Dismissed Before Verdict
The Double Jeopardy Clause of the South Carolina Constitution and the Fifth Amendment to the United States Constitution protect all citizens from being twice put in jeopardy of life or liberty.
A defendant, therefore, may not be prosecuted for the same offense after an acquittal, a conviction, or an improvidently granted mistrial.
Generally, jeopardy attaches when a jury is sworn and impaneled, unless prior to reaching a verdict, the jury is discharged with the defendant's consent or upon some ground of legal necessity.
In Downum v. United States, a majority of the United States Supreme Court held that a defendant's second trial was barred by double jeopardy where the first impaneled jury was dismissed prior to reaching a verdict because the prosecutor realized a government witness had failed to appear.
Although the Court declined to state that the absence of a witness will never justify a mistrial, the majority opinion made it clear that courts must "resolve any doubt 'in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain, and arbitrary judicial discretion.'"
Adopting language from a ninth circuit decision, the Court ruled that by impaneling the jury without first determining the whereabouts of his or her witnesses, the prosecutor "'took a chance'".
the magistrate in this case ultimately agreed, stating "I think under Downum versus United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100, which is a 1963 case, I think it's very clear that for me to let this case go forward today would be reversible error."