ARIZONA ET AL. v. WASHINGTON
No. 76-1168
Supreme Court of the United States
Argued October 31, 1977-Decided February 21, 1978
434 U.S. 497
Ed Bolding argued the cause for respondent. With him on the brief was Frederick S. Klein.
MR. JUSTICE STEVENS delivered the opinion of the Court.
An Arizona trial judge granted the prosecutor‘s motion for a mistrial predicated on improper and prejudicial comment during defense counsel‘s opening statement. In a subsequent habeas corpus proceeding, a Federal District Court held that the Double Jeopardy Clause protected the defendant from another trial. The Court of Appeals for the Ninth Circuit affirmed.1 The questions presented are whether the record reflects the kind of “necessity” for the mistrial ruling that will avoid a valid plea of double jeopardy, and if so, whether the plea must nevertheless be allowed because the Arizona trial judge did not fully explain the reasons for his mistrial ruling.
I
In 1971 respondent was found guilty of murdering a hotel night clerk. In 1973, the Superior Court of Pima County, Ariz., ordered a new trial because the prosecutor had withheld exculpatory evidence from the defense. The Arizona Supreme Court affirmed the new trial order in an unpublished opinion.
Respondent‘s second trial began in January 1975. During the voir dire examination of prospective jurors, the prosecutor made reference to the fact that some of the witnesses whose testimony the jurors would hear had testified in proceedings
“You will hear testimony that notwithstanding the fact that we had a trial in May of 1971 in this matter, that the prosecutor hid those statements and didn‘t give those to the lawyer for George saying the man was Spanish speaking, didn‘t give those statements at all, hid them.
“You will hear that that evidence was suppressed and hidden by the prosecutor in that case. You will hear that that evidence was purposely withheld. You will hear that because of the misconduct of the County Attorney at that time and because he withheld evidence, that the Supreme Court of Arizona granted a new trial in this case.” App. 180-181, 184.
After opening statements were completed, the prosecutor moved for a mistrial. In colloquy during argument of the motion, the trial judge expressed the opinion that evidence concerning the reasons for the new trial, and specifically the ruling of the Arizona Supreme Court, was irrelevant to the issue of guilt or innocence and therefore inadmissible. Defense counsel asked for an opportunity “to find some law” that would support his belief that the Supreme Court opinion would be admissible.3 After further argument, the judge stated that
The following morning the prosecutor renewed his mistrial motion. Fortified by an evening‘s research, he argued that there was no theory on which the basis for the new trial ruling could be brought to the attention of the jury, that the prejudice to the jury could not be repaired by any cautionary instructions, and that a mistrial was a “manifest necessity.” Defense counsel stated that he still was not prepared with authority supporting his belief that the Supreme Court opinion was admissible.4 He argued that his comment was invited by the prosecutor‘s reference to the witnesses’ earlier testimony
Ultimately the trial judge granted the motion, stating that his ruling was based upon defense counsel‘s remarks in his opening statement concerning the Arizona Supreme Court opinion. The trial judge did not expressly find that there was “manifest necessity” for a mistrial; nor did he expressly state that he had considered alternative solutions and concluded that none would be adequate. The Arizona Supreme Court refused to review the mistrial ruling.
Respondent then filed a petition for writ of habeas corpus in the United States District Court for the District of Arizona, alleging that another trial would violate the Double Jeopardy Clause. After reviewing the transcript of the state proceeding, and hearing the arguments of counsel, the Federal District Judge noted that the Arizona trial judge had not canvassed on the record the possibility of alternatives to a mistrial and expressed the view that before granting a mistrial motion the judge was required “to find that manifest necessity exists for the granting of it.”7 Because the record contained no such finding, and because the federal judge was not prepared to
The Ninth Circuit also characterized the opening statement as improper, but affirmed because, absent a finding of manifest necessity or an explicit consideration of alternatives,9 the court was unwilling to infer that the jury was prevented from arriving at a fair and impartial verdict.10 In a concurring opinion, two judges noted that, while the question of manifest necessity had been argued, most of the argument on the mistrial motion had concerned the question whether the opening statement was improper. They concluded that, “absent findings that manifest necessity existed, it ... [was] quite possible that the grant of mistrial was based on the fact that the impropriety of counsel‘s conduct had been established
We are persuaded that the Court of Appeals applied an inappropriate standard of review to mistrial rulings of this kind, and attached undue significance to the form of the ruling. We therefore reverse.
II
A State may not put a defendant in jeopardy twice for the same offense. Benton v. Maryland, 395 U.S. 784. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. The public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though “the acquittal was based upon an egregiously erroneous foundation.” See Fong Foo v. United States, 369 U.S. 141, 143. If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair.
Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant‘s “valued right to have his trial completed by a particular tribunal.”11 The reasons why this “valued right” merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden
Unlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused. Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.16 Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate “manifest necessity” for any mistrial declared over the objection of the defendant.
The words “manifest necessity” appropriately characterize the magnitude of the prosecutor‘s burden.17 For that reason
“The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad-faith conduct by judge or prosecutor’ . . . threatens the ‘[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.”
Thus, the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence,24 or when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused.25
Moreover, in this situation there are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding whether or not “manifest necessity” justifies a discharge of the jury. On the one hand, if he discharges the jury when further deliberations may produce a fair verdict, the defendant is deprived of his “valued right to have his trial completed by a particular tribunal.” But if he fails to discharge a jury which is unable to reach a verdict after protracted and exhausting deliberations, there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. If retrial of the defendant were barred whenever an appellate
We are persuaded that, along the spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny, the difficulty which led to the mistrial in this case also falls in an area where the trial judge‘s determination is entitled to special respect.
In this case the trial judge ordered a mistrial because the defendant‘s lawyer made improper and prejudicial remarks during his opening statement to the jury. Although respond-
We recognize that the extent of the possible bias cannot be measured, and that the District Court was quite correct in believing that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. In a strict, literal sense, the mistrial was not “necessary.” Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge‘s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.
In Thompson v. United States, 155 U.S. 271, 279, the Court concluded that a mistrial was required when it was revealed that one of the trial jurors had served on the grand jury that indicted the defendant. Since it is possible that the grand jury had heard no more evidence--and perhaps even less-than was presented at the trial, and since the juror in question may have had no actual bias against the defendant, the record did not demonstrate that the mistrial was strictly “necessary.” There can be no doubt, however, about the validity of the conclusion that the possibility of bias justified the mistrial.
An improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal. Indeed, such statements create a risk, often not present in the individual juror bias situation,31 that the entire panel may be tainted. The trial judge, of
There are compelling institutional considerations militating in favor of appellate deference to the trial judge‘s evaluation of the significance of possible juror bias.33 He has seen and
III
Our conclusion that a trial judge‘s decision to declare a mistrial based on his assessment of the prejudicial impact of improper argument is entitled to great deference does not, of course, end the inquiry. As noted earlier, a constitutionally protected interest is inevitably affected by any mistrial decision. The trial judge, therefore, “must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” United States v. Jorn, 400 U.S., at 486 (Harlan, J.). In order to ensure that this interest is adequately protected, reviewing courts have an obligation to satisfy themselves that, in the words of Mr. Justice Story, the trial judge exercised “sound discretion” in declaring a mistrial.
Thus, if a trial judge acts irrationally or irresponsibly, cf. United States v. Jorn, supra; see Illinois v. Somerville, 410 U.S., at 469, his action cannot be condoned. But our review of this record indicates that this was not such a case.34 Defense
IV
One final matter requires consideration. The absence of an explicit finding of “manifest necessity” appears to have been determinative for the District Court and may have been so for the Court of Appeals. If those courts regarded that omission as critical,38 they required too much. Since the record provides
Review of any trial court decision is, of course, facilitated by findings and by an explanation of the reasons supporting the decision. No matter how desirable such procedural assistance may be, it is not constitutionally mandated in a case such as this. Cf. Cupp v. Naughten, 414 U. S. 141, 146 (1973). The basis for the trial judge‘s mistrial order is adequately disclosed by the record, which includes the extensive argument of counsel prior to the judge‘s ruling. The state trial judge‘s mistrial declaration is not subject to collateral attack in a federal court simply because he failed to find “manifest necessity” in those words or to articulate on the record all the factors which informed the deliberate exercise of his discretion.39
The judgment of the Court of Appeals is
Reversed.
MR. JUSTICE BLACKMUN concurs in the result.
MR. JUSTICE WHITE, dissenting.
I cannot agree with the Court of Appeals that the failure of a state trial judge to express the legal standard under which
The Court of Appeals, as well as the District Court, was therefore in error in granting relief without further examination of the record to determine whether the use of an incorrect legal standard was sufficiently indicated by something beyond mere silence and, if not, whether the declaration of a mistrial, which the Court of Appeals said it was “normally inclined to uphold,” at least in the absence of “clear abuse of discretion,” was constitutionally vulnerable. I would not, however, undertake an examination of the record here in the first instance. Rather, I would vacate the judgment of the Court of Appeals and direct that court to remand the case to the District Court to make the initial judgment, under the correct legal standard, as to whether the writ should issue.
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
Where I part ways from the Court is in its 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).
Nor can I agree with the majority that the Court of Appeals applied an inappropriate standard of review. It expressly recognized that “[t]he power to discharge a jury . . . is discretionary with the trial court” and that, “[i]n the absence of clear abuse, we . . . normally . . . uphold discretionary orders of this nature.” 546 F. 2d, at 832. But this is so, noted the court, where “[i]n the usual case, the trial judge has observed the complained-of event, heard counsel, and made specific findings. Under such circumstances, a mistrial declaration accompanied by a finding that the jury could no longer render an impartial verdict would not lightly be set aside.” Ibid.
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
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 objec-
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
Had the court here explored alternatives on the record, or made a finding of substantial and incurable prejudice or other “manifest necessity,” this would be 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
I would therefore affirm the judgment of the Court of Appeals.
Notes
“MR. BOLDING: I‘ll really try to do some additional work, then your Honor, to try to find some law for it. I believe it would be admissible. It‘s corroborative of the testimony that the jury will hear.
“THE COURT: I‘m afraid, and I don‘t know how we stop it, we‘re getting to the point where we‘re trying the County Attorney‘s office and
the County Attorney‘s office, conduct, whatever it was in the last case, and I simply, I am not going to allow it if this trial goes on and I‘m very sorely tempted to grant the State‘s motion at this time.“MR. BOLDING: Well your Honor, that‘s-I will be sorry if that happens and if the Court tells me now that I cannot examine any witness about that Supreme Court decision until I furnish you some law that says yes, that can come in, then I will abide by that decision, your Honor. I will be working on it and I would like to reserve my right to present that to the Court outside the hearing of the jury at another time. I just, I believe that it is, it‘s credible evidence. It‘s, thinking, you know, off the top of my head here, it‘s opinion evidence from experts. It‘s evidence that I believe is truly corroborative of the evidence that the jury will hear and I would certainly like to reserve my right to present some, if I can find you some written law, which would allow this type of testimony, your Honor, as evidence.” App. 209-210.
Later, the trial judge expressed disagreement with defense counsel‘s argument that evidence of prosecutorial misconduct could be admitted on an impeachment theory: “I don‘t think you‘re entitled to prove all this misconduct if such is the case, to impeach every witness, and I think that‘s what you‘re saying to me.” Id., at 217-218.
See App. 173, 176, 178, 182, 183.“THE COURT: And I expressed my concern about that, Mr. Butler.” Id., at 253.
I do not mean to suggest that curative instructions are always or even generally sufficient to cure prejudice resulting from evidentiary errors, see Bruton v. United States, 391 U. S. 123, 129 (1968), quoting Krulewitch v. United States, 336 U. S. 440, 453 (1949) (Jackson, J., concurring), particularly where the error is one by the prosecutor and must be shown to have been harmless beyond any reasonable doubt in order for the conviction to be sustained, see Chapman v. California, 386 U. S. 18, 21-24 (1967). However, it must be recognized that the cases are legion in which convictions have been upheld despite the jury‘s exposure to improper material relating to the defendant‘s past conduct, often because curative instructions have been found sufficient to dispel any prejudice. See, e. g., United States v. Bloom, 538 F. 2d 704, 710 (CA5 1976); id., at 711 (Tuttle, J., concurring); United States v. Plante, 472 F. 2d 829, 831-832 (CA1), cert. denied, 411 U. S. 950 (1973); United States v. Roland, 449 F. 2d 1281 (CA5 1971); Driver v. United States, 441 F. 2d 276 (CA5 1971); Beasley v. United States, 94 U. S. App. D. C. 406, 218 F. 2d 366 (1954), cert. denied, 349 U. S. 907 (1955). See also United States v. Hoffman, 415 F. 2d 14, 21 (CA7), cert. denied, 396 U. S. 958 (1969) (prosecutor‘s closing argument referring to accused as “liar, crook, and wheeler and dealer” was improper but harmless error). If instructions may be found to have cured prosecutorial error relating to the defendant‘s past misconduct beyond a reasonable doubt, they ought surely to be considered in deciding whether to subject a defendant to a second trial because of defense error in referring to past misconduct by the prosecution.“In the absence of clear abuse, we are normally inclined to uphold discretionary orders of this nature. In the usual case, the trial judge has observed the complained-of event, heard counsel, and made specific findings. Under such circumstances, a mistrial declaration accompanied by a finding that the jury could no longer render an impartial verdict would not be lightly set aside.” 546 F. 2d, at 832.
The importance of the absence of express findings or reasons to the decision below seems apparent. The Arizona trial judge “observed the complained-of event” and patiently “heard counsel.” Had he taken the additional step of making an express finding of “manifest necessity,” it appears that Judge Kilkenny would have reviewed the mistrial ruling under a less exacting abuse-of-discretion standard.
“Based upon defense counsel‘s remarks in his opening statement concerning the Arizona Supreme Court opinion and its effect for the reasons for the new trial, the motion for mistrial will be granted.” App. 271-272. As was noted in the Court of Appeals, the circumstances of the argument on the mistrial motion and the ruling itself make it “quite possible that the grant of mistrial was based on the fact that the impropriety of counsel‘s conduct had been established without reaching the question whether there could, nevertheless, be a fair trial.” 546 F. 2d, at 833 (Merrill, J., concurring).“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” (Emphasis added.)
Given the importance of respondent‘s constitutionally protected interest in avoiding unnecessary second trials, United States v. Jorn, 400 U. S., at 486, it might even be argued that a statement of reasons explicitly relating to the need for a mistrial is always required. I do not go this far here, but only observe that we have held in numerous contexts that governmental decisionmakers must state their reasons for decision, particularly where the decision is adverse to the constitutionally or statutorily protected interests of an individual. See, e. g., Morrissey v. Brewer, 408 U. S. 471, 489 (1972); Goldberg v. Kelly, 397 U. S. 254, 271 (1970).“[T]he Government witnesses came to drop from their testimony impressions favorable to defendant. Thus a key prosecution witness, the last person to see appellant and the deceased together, who began by testifying that they had acted that evening like newlyweds on a honeymoon, without an unfriendly word spoken, ended up by saying for the first time in four trials that the words between them had been ‘firm,’ and possibly harsh and ‘cross.’
“We also note that the police officer who readily acquiesced in the two ‘hung jury’ trials that appellant was ‘hysterical,’ later withheld that characterization. This shift, though less dramatic, was by no means inconsequential in view of the significance of appellant‘s condition at the time he made a statement inconsistent with what he later told another officer.” See also n. 13, supra.
In Simmons v. United States, 142 U. S. 148 (1891), discussed ante, at 512, the trial court had explained at length the reasons for its conclusion that there was a “manifest necessity” for the mistrial. 142 U. S., at 149-150. Indeed, even in Thompson v. United States, discussed ante, at 512, and in n. 7, supra, the trial court‘s finding that there was “no [other] way” to respond to the grand juror‘s presence on the petit jury sufficiently indicated on the record an exercise of discretion informed by the “manifest necessity” standard.“The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined by the jury
first impaneled is itself a weighty one. . . . Nor will the lack of demonstrable additional prejudice preclude the defendant‘s invocation of the double jeopardy bar in the absence of some important countervailing interest of proper judicial administration.”“[A] criminal trial is, even in the best of circumstances, a complicated affair to manage. . . . [It is] readily apparent that a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant‘s consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.”
“This rule if taken literally seems to command the confinement of the jury till death if they do not agree, and to avoid any such consequence an
exception was introduced in practice which Blackstone has described by the words ‘except in case of evident necessity.’“But the exception so expressed has given rise to further doubts, because necessity is an equivocal word, meaning either irresistible compulsion or a high degree of need. Those who have been interested in objecting to a discharge of a jury before verdict, have disputed whether the discharge was necessary in the stricter sense of the word. The same dispute about the meaning of the word necessity in the exception to this rule is the source of the main questions raised upon this writ of error, and they are in substance answered when we decide on the meaning of that word in the exception to this rule, and apply that meaning to the facts appearing on this record. We assume it to be clear that the discharge of the jury before verdict may be lawful at some time and under some circumstances. Then with reference to the facts on this record, we hold that the judge at the first trial had by law power to discharge the jury before verdict, when a high degree of need for such discharge was made evident to his mind from the facts which he had ascertained. We cannot define the degree of need without some standard for comparison; we cannot approach nearer to precision than by describing the degree as a high degree such as in the wider sense of the word might be denoted by necessity.” Winsor v. The Queen, supra, at 390, 394.
“Harassment of an accused by successive prosecutions or declaration of
a mistrial so as to afford the prosecution a more favorable opportunity to convict are examples when jeopardy attaches.”Yet, as Mr. Justice Douglas further noted, “those extreme cases do not mark the limits of the guarantee.” Ibid. The “particular tribunal” principle is implicated whenever a mistrial is declared over the defendant‘s objection and without regard to the presence or absence of governmental overreaching. If the “right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury.” United States v. Jorn, 400 U. S., at 485. See discussion in Part III, infra.
“We do take upon ourselves, without the consent of the parties . . . , to discharge the jury when we are satisfied that they have fully considered the case and cannot agree; and I hope no Judge will shrink from taking that course; for, if a jury cannot agree, we ought not to coerce them by personal suffering, nor ought we to expose parties to the danger of a verdict which is not the result of conviction in the minds of the jury, but produced by suffering of mind or body.” The Queen v. Charlesworth, 1 B. & S., at 503-504, 121 Eng. Rep., at 802.
“It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct. Moreover, it is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict.” 424 U. S., at 612.
Our identification of this reason for according deference to the trial judge in juror bias cases generally is not intended as a comment upon the conduct of defense counsel in this case.
During argument on the prosecutor‘s motion, defense counsel insisted that evidence of prosecutorial misconduct in a prior proceeding was admissible for impeachment purposes; although he could offer no authority to support this novel proposition, he indicated to the judge that he would appreciate an opportunity to “find . . . some written law, which would allow this type of testimony . . . as evidence.” Supra, at 500 n. 3. While the trial judge remarked that he could conceive of no basis for the admission of such evidence and that he was tempted to grant the prosecutor‘s request immediately because of defense counsel‘s injection of the prosecutorial misconduct issue into the trial, supra, at 499-500, n. 3, he did not act precipitately. Rather, proceeding with caution and giving defense counsel the benefit of the doubt, App. 223, the trial judge reserved ruling on the admissibility question and at first denied the mistrial motion. In avoiding a hasty decision despite his conviction that the evidence was improper, the trial judge was plainly acting out of concern for the double jeopardy interests implicated by an improvident mistrial. Id., at 225, 253.
The following day the prosecutor renewed his motion. The trial judge heard extensive argument from both sides regarding both the propriety of defense counsel‘s opening statement and the need for a mistrial. Defense counsel contended that any prejudice which might have resulted from the references to prosecutorial misconduct could be cured by cautionary instructions; the prosecutor argued that such an alternative would be inadequate to remove the risk of taint.