Does the Double Jeopardy Clause bar a retrial after a trial judge declares a mistrial over the defendant's objection because of improper and prejudicial remarks by defense counsel in opening statement, where the judge did not expressly find 'manifest necessity' or explicitly state that he considered alternatives?

Respondent was convicted in 1971 of murdering a hotel night clerk. In 1973 an Arizona court ordered a new trial because the prosecutor had withheld exculpatory evidence from the defense, and the Arizona Supreme Court affirmed. At the second trial in January 1975, defense counsel told prospective jurors during voir dire that evidence was hidden from respondent at the last trial. In his opening statement, he told the jury that the prosecutor hid and purposely withheld evidence, that the evidence was suppressed because of the County Attorney's misconduct, and that the Arizona Supreme Court granted a new trial for that reason. The prosecutor moved for a mistrial after the opening statements. The trial judge believed the evidence about the reasons for the new trial was inadmissible, withheld ruling, and denied the motion. After two witnesses testified, the prosecutor renewed the motion, arguing that cautionary instructions could not cure the prejudice. Defense counsel opposed, arguing the remarks were invited by the prosecutor's own reference to earlier testimony and that curative instructions would suffice, and he could cite no authority for admissibility. The judge, expressing concern that an erroneous mistrial ruling would bar another trial, granted the mistrial based on the opening-statement remarks. He made no express finding of manifest necessity and did not state that he had considered alternatives.

The Arizona trial judge granted the prosecutor's mistrial motion at respondent's second trial. The Arizona Supreme Court refused to review the mistrial ruling. Respondent then petitioned for a writ of habeas corpus in the United States District Court for the District of Arizona, claiming a retrial would violate the Double Jeopardy Clause. The District Court granted the writ, reasoning that the trial judge had made no finding of manifest necessity and had not canvassed alternatives on the record. The Ninth Circuit affirmed, finding the opening statement improper but declining to infer necessity absent an explicit finding or consideration of alternatives. The Supreme Court granted certiorari and reversed.

(Stevens, J.)

No. The Double Jeopardy Clause does not bar a retrial here. The mistrial was supported by manifest necessity, and the absence of an express finding of necessity does not make the ruling constitutionally defective.

The Double Jeopardy Clause protects the defendant's valued right to have his trial completed by a particular tribunal, but that right is sometimes subordinate to the public interest in giving the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Where a mistrial is declared over the defendant's objection, the prosecutor bears a heavy burden to show 'manifest necessity.' United States v. Perez, 9 Wheat. 579 (1824). The phrase is not applied mechanically; it requires a 'high degree' of necessity, and the degree of appellate scrutiny varies with the reason for the mistrial.

The strictest scrutiny applies when a mistrial is used to give the prosecution a tactical advantage, such as when critical prosecution evidence is unavailable. Great deference is due when the mistrial rests on a deadlocked jury. A mistrial for possible juror bias from improper argument falls within the area of special deference. An improper opening statement threatens the impartiality of the entire panel, and curative instructions or discipline of counsel do not necessarily remove that risk. The trial judge has watched the voir dire, knows the evidence and background of the case, and has observed the tone of the argument and the jurors' reactions, so he is far better placed than a reviewing court to assess the prejudice. Simmons v. United States, 142 U.S. 148 (1891); Thompson v. United States, 155 U.S. 271 (1894); Wade v. Hunter, 336 U.S. 684 (1949).

Deference is not unlimited; reviewing courts must ensure the judge exercised sound discretion rather than acting irrationally or irresponsibly. Here the judge denied the first motion, reserved ruling, heard extensive argument from both sides on propriety and on alternatives, and openly weighed the double jeopardy consequences of error. He acted responsibly and deliberately, so the high degree of necessity was met.

The absence of an express finding of manifest necessity does not matter. Findings are helpful but not constitutionally required where the record adequately discloses the basis for the ruling, and a state judge's mistrial order is not open to collateral attack for failing to use those words. The judgment is reversed.

Concurrence in the result (Blackmun, J.) Justice Blackmun concurred in the result without a separate opinion.

Dissent (White, J.) A state trial judge's failure to articulate the legal standard under which he declared a mistrial is not by itself a sufficient reason to infer constitutional error barring a second trial. Townsend v. Sain, 372 U.S. 293 (1963), holds that a federal habeas court may ordinarily assume that a state trial judge applied correct federal standards in the absence of evidence to the contrary, and a silent record does not establish error. The Court of Appeals and District Court erred by granting relief without examining the record for something beyond silence indicating that an incorrect standard was applied. The appropriate course is to vacate the Court of Appeals' judgment and have the case remanded to the District Court to decide, under the correct legal standard, whether the writ should issue.

Dissent (Marshall, J., joined by Brennan, J.) The disagreement with the majority is narrow. Substantial deference is due a trial judge's finding that the prejudice from an improper opening statement leaves no alternative to a mistrial. But no such finding appears on this record, and the majority assumes one. Defense counsel's improper remarks occupied one page of a lengthy opening statement, and the prosecutor, who interrupted repeatedly with other objections, did not object to them until after the statement ended and the luncheon recess concluded, suggesting minimal prejudice curable by less drastic means such as instructions to disregard or questioning of the jury. The trial court never evaluated the degree of prejudice, explored alternatives, or indicated awareness of the Perez doctrine; its entire focus was on whether the evidence was admissible. A trial judge need not always make express findings, as where the error would make reversal on appeal certain, but where necessity is not plain and obvious the record must show either that no meaningful alternatives existed or that the court scrupulously considered and rejected them. Because the record does neither, a retrial would violate the Double Jeopardy Clause, and the Court of Appeals should be affirmed. The majority answers that its own review of the record shows the judge acted responsibly and deliberately, with both sides arguing juror bias and alternatives to a mistrial.