Arizona v. Washington, 434 U.S. 497 (1978)

Author: Justice Marshall

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Arizona v. Washington, 434 U.S. 497 (1978)

MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.

The Court today holds that another trial of respondent, following a mistrial declared over his vehement objection, is not prohibited by the Double Jeopardy Clause. To reach this result, my Brethren accord a substantial degree of deference to a trial court finding that the Court simply assumes was made but that appears nowhere in the record. Because of the silence of the record on the crucial question whether there was "manifest necessity" for a mistrial, I believe that another trial of respondent would violate his constitutional right not to be twice put in jeopardy for the same offense. I therefore dissent.

My disagreement with the majority is a narrow one. I fully concur in its view that the constitutional protection of the Double Jeopardy Clause "embraces the defendant’s `valued right to have his trial completed by a particular tribunal,’" since a second prosecution inevitably

increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.

Ante at 503-504 (footnotes omitted). For these reasons, I also agree that, where a mistrial is declared over a defendant’s objections, a new trial is permissible only if the termination of the earlier trial was justified by a "manifest necessity," and that the prosecution must shoulder the "heavy" burden of demonstrating such a "high degree" of necessity. Ante at 505-506. Nor do I quarrel with the proposition that reviewing courts must accord substantial deference to a trial judge’s determination that the prejudicial impact of an improper opening statement is so great as to leave no alternative but a mistrial to secure the ends of public justice. Ante at 510, 513-514.{1}

Where I part ways from the Court is in it assumption that an "assessment of the prejudicial impact of improper argument," ante at 514, sufficient to support the need for a mistrial, may be implied from this record. As the courts below found,{2} it is not apparent on the face of the record that termination of the trial was justified by a "manifest necessity" or was the only means by which the "ends of public justice" could be fulfilled, United States v. Perez, 9 Wheat. 579, 580 (1824).See also ante at 511. Defense counsel’s improper remarks occupied only one page of a lengthy opening statement. Despite the fact that the prosecutor had vigorously interrupted the opening statement at numerous points to assert various objections,{3} he made no objection to the remarks that formed the basis for the mistrial. If the argument of defense counsel had had a visibly obvious impact on the jurors when uttered, it is hard to believe that this prosecutor would have waited until after the opening statement was finished and the luncheon recess concluded before making his objection known.

Although, from this distance and in the absence of express findings, it is impossible to determine the precise extent to which defense counsel’s remarks may have prejudiced the jury against the State, the circumstances set forth above suggest that any such prejudice may have been minimal and subject to cure through less drastic alternatives.{4} For example, the jury could have been instructed to disregard any mention of prior legal rulings as irrelevant to the issues at hand, and to consider as evidence only the testimony and exhibits admitted through witnesses on the stand.{5} Were there doubt whether such instructions alone would suffice to cure the taint, the jury could have been questioned about the extent of any prejudice. Given the anticipated length of the trial (almost two weeks),{6} it is not unlikely that, had the jury been appropriately instructed when the court first found defense counsel to have erred in his opening statement, any prejudice would have dissipated before deliberations were to begin. For these reasons, it is impossible to conclude that finding of necessity was implicit in the mere grant of the mistrial.{7}

As the majority concedes, ante at 501, there was no express determination or evaluation by the trial court of the degree of prejudice caused by the improper remarks; nor was there any exploration of possible alternatives to the drastic solution of declaring a mistrial; nor, indeed, any express indication on the face of the record that the trial court was aware of the dictates of the Perez doctrine. Over the two days during which the mistrial motion was argued, the entire thrust of the trial court’s questions and comments was to determine whether there was any legal basis for admitting into evidence the Arizona Supreme Court’s ruling that the prosecution in an earlier trial had suppressed evidence exculpatory of respondent, to which ruling defense counsel had adverted in opening statement.{8} The tenor of the court’s remarks throughout -- including its statement in declaring the mistrial{9} -- suggests that the only question considered was that of admissibility.{10}

There is no doubt that the trial court’s exploration of the evidentiary question was conscientious and deliberate. The majority infers from this care that the trial court must have been aware of the correct legal standard governing the permissibility of retrials following mistrials, and must impliedly, though not expressly, have made the requisite findings of necessity. The deliberation with which the trial court dealt with the evidentiary issue, however, only highlights its failure to address what I believe must be the key inquiry: whether a mistrial, and its abrogation of a defendant’s constitutionally protected interest in completing his trial before a particular tribunal, United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality opinion of Harlan, J.); Wade v. Hunter, 336 U.S. 684, 689 (1949), is the only way to secure the public interest in a just disposition of the charges.

I do not propose that the Constitution invariably requires a trial judge to make findings of necessity on the record to justify the declaration of a mistrial over a defendant’s objections. For example, where the nature of the error is one that "would make reversal [of any conviction] on appeal a certainty," Illinois v. Somerville, 410 U.S. 458, 464 (1973), the appropriate finding may be implied from the declaration of a mistrial.{11} What the "manifest necessity" doctrine does require, in my view, is that the record make clear either that there were no meaningful and practical alternatives to a mistrial, or that the trial court scrupulously considered available alternatives and found all wanting but a termination of the proceedings. See United States v. Jorn, supra at 485; Illinois v. Somerville, supra at 478-479 (MARSHALL, J., dissenting). The record here, as demonstrated above, does neither.

Where the need for a mistrial is not "plain and obvious," United States v. Perez, 9 Wheat. at 580, the importance of an affirmative indication that the trial court made the relevant findings is apparent. In the chaos of conducting a trial, with the welter of administrative as well as legal concerns that must occupy the mind of the trial judge, it is all too easy to overlook a legal rule or relevant factor in rendering decision. A requirement of some statement on the record addressed to the need for a mistrial would ensure that appropriate consideration is given to the efficacy of other alternatives and that mistrial decisions are not based upon improper, or only partly adequate, criteria. Of particular relevance here, moreover, it would facilitate proper appellate and habeas review, avoiding the need to speculate on the basis for the decision to terminate the trial.{12} These considerations have special force when a mistrial is sought on the ground of jury bias resulting from trial counsel’s error. The trial court is uniquely situated to evaluate the seriousness of any such prejudice, see ante at 513-514, and its failure contemporaneously to do so may preclude meaningful subsequent determination of whether the mistrial was properly granted over the defendant’s objection. Thus, where the necessity for a mistrial is not manifest on the face of the record, I would hold that the record must clearly indicate that the trial court made a considered choice among the available alternatives.{13}

Had the court here explored alternatives on the record, or made a finding of substantial and incurable prejudice or other "manifest necessity," this would b a different case and one in which I would agree with both the majority’s reasoning and its result.{14} On this ambiguous record, however, the absence of any such finding -- and indeed of any express indication that the trial court applied the manifest necessity doctrine -- leaves open the substantial possibility that there was in fact no need to terminate the proceedings. While the Court states that a "high degree" of necessity is required before a mistrial may properly be granted, its reading of the record here is inconsistent with this principle.

I would therefore affirm the judgment of the Court of Appeals.


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Chicago: Marshall, "Marshall, J., Dissenting," Arizona v. Washington, 434 U.S. 497 (1978) in 434 U.S. 497 434 U.S. 520–434 U.S. 527. Original Sources, accessed October 3, 2022,

MLA: Marshall. "Marshall, J., Dissenting." Arizona v. Washington, 434 U.S. 497 (1978), in 434 U.S. 497, pp. 434 U.S. 520–434 U.S. 527. Original Sources. 3 Oct. 2022.

Harvard: Marshall, 'Marshall, J., Dissenting' in Arizona v. Washington, 434 U.S. 497 (1978). cited in 1978, 434 U.S. 497, pp.434 U.S. 520–434 U.S. 527. Original Sources, retrieved 3 October 2022, from