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    Colorado Mistrial Law A Review Of This Rare Trial Ruling

    By Colorado Criminal Defense Trial Lawyer – H. Michael Steinberg

    The grant of a mistrial is very serious – because it can trigger the double jeopardy bar and prevent any subsequent prosecution of the charges against him.

    Double Jeopardy

    Double jeopardy is a constitutional guarantee prohibiting the retrial of a defendant who already has been tried for the same offense. The Fifth Amendment of the United States Constitution provides that no person “shall · be subject for the same offence to be twice put in jeopardy of life or limb,” and is made applicable to the states through the Fourteenth Amendment.

    Likewise, the Colorado Constitution provides that “nor shall any person be twice put in jeopardy for the same offense.” See Colo. Const. art. II, § 18. Double jeopardy addresses the basic concern that a government should not be allowed “repeated chances to obtain a conviction of an accused.” It protects a defendant’s right to have a verdict returned by a particular jury.

    The double jeopardy prohibition is implicated if a defendant is arraigned, enters a plea, is brought to trial in a court of competent jurisdiction, and a jury has been selected and sworn to hear the case.

    If a criminal trial is terminated prior to its completion, double jeopardy will bar a second trial unless the trial court has sufficient legal justification for declaring a mistrial over the defendant’s objection.

    The “Manifest Necessity” Doctrine

    The Supreme Court in United States has explained the key doctrine here- manifest necessity:

    The “manifest necessity” doctrine bars a trial judge from declaring a mistrial over the defendant’s objection unless “a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” This “manifest necessity” standard clearly prohibits a trial court from declaring a mistrial based on a “whimsical notion or frivolous impulse.”

    The basis for declaring a mistrial must be “substantial and real,” such that continuing with the trial would interfere with or retard the “administration of honest, fair, even-handed justice to either, both, or any, of the parties to the proceeding.”

    It is impossible for a reviewing court to list a concrete set of situations that automatically justify declaring a mistrial.

    Colorado’s criminal code, however, does provide specific grounds for mistrial in cases where the trial court finds that:

    (I) The termination is necessary because it is physically impossible to proceed with the trial in conformity with the law;


    (II) There is a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law;


    (III) Prejudicial conduct has occurred in or outside the courtroom making it unjust either to the defendant or to the state to proceed with the trial;


    (IV) The jury is unable to agree upon a verdict; or (V) False statements of a juror on voir dire prevent a fair trial.

    Although this list is not complete or definitive, Colorado courts generally have upheld declarations of mistrial only in these or similar situations. 


    H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior  prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.  Please call him at your convenience at 720-220-2277

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
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