What happens if theres a mistrial

A retrial should be scheduled "without further delay". Only a "short period" of delay will be expected. Anything longer may open the possibility of a s. There is some suggestion that the Crown seeking a mistrial to provide an opportunity to strengthen the case against the accused and cover for negligent preparations may be considered abusive and warrant a stay under s.

Where a mistrial is declared, the rulings on pre-trial motions will generally still apply if the prosecution is re-initiated. This section is considered a "departure from previous authority from the Supreme Court of Canada to the effect that a trial judge is not bound by interlocutory rulings made at an earlier trial". Section This presumption to maintaining prior ruling can be rebutted on a balance of probabilities where it is in the "interests of justice".

Rebuttal of the presumption can include considerations such as: [7]. A mistrial will not be ordered where the accused fires trial counsel mid-trial and the new counsel wishes to have re-done the trial in a different manner.

The prosecution will then need to determine how to best proceed with the case. A judge may call a mistrial for many reasons. For instance, somebody may have made a statement in front of the jury that prompted prejudice toward the defense. In this case, the defendant's right to a fair trial has been sabotaged.

Some things happen outside the power of the defense or prosecution. The court may call a mistrial if an attorney or member of the jury has passed away during the trial. Jury selection errors also lead to mistrial. Perhaps a juror was actually a relative or friend of the victim or defendant.

Or maybe a juror participated in misconduct. For example, a juror may have researched the case at home in spite of jury instructions not to. Finally, a mistrial happens when the jury is deadlocked at the trial's end. When the court requires a unanimous decision, this is a big problem. After a mistrial, the court may bring an individual back to trial later or the prosecution may choose to drop all charges. If they drop the charges, this means, in the law's eyes, the trial never happened and the prosecution never brought charges against the defense.

You may wonder if a mistrial triggers the double jeopardy clause, which is where a person is on trial for the same offense. It does not. An individual can be tried for the same crime if the original court case did not result in a valid conclusion.

This means the court can schedule another trial in the near future. If the prosecution wishes to pursue the trial, the defendant may choose to accept a plea bargain. A judge may decide to disallow this in some cases, but the prosecutor is usually allowed to proceed. Because the case can be retried, a hung jury caused by one or more conscientious objectors to the law who voted not guilty even though they believed the law was broken does not constitute jury nullification in the strictest sense of the term.

The law can be said to be nullified in the trial at hand, but it is not nullified in the case altogether. However, many people colloquially use the term jury nullification to encompass this type of scenario.

Functionally, a hung jury is far better for the defendant than a conviction. Undoing a conviction is very difficult. An appeal is not guaranteed in the first place. It may not be legally permitted, the defendant may no longer have the financial resources to mount an appeal, etc.

Even when a defendant is able to appeal a conviction, that individual no longer enjoys the presumption of innocence. Return to FAQ. What We Do. How to Help. About FIJA.