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Name: People v. Batts
Case #: S101183
Court: CA Supreme Court
District CalSup
Opinion Date: 05/19/2003

During appellant’s murder trial, the court issued an order that counsel not elicit testimony concerning a key witness’s unavailability. Prosecutors met with a police officer witness during a recess and advised him that they would be asking him why the key witness had not been available to testify. They instructed the officer to “tell the truth.” Under subsequent questioning, the officer stated that the witness was unavailable because he had been murdered. A defense motion for a mistrial was granted. At the start of a third trial, appellant moved to dismiss on double jeopardy grounds. The motion was denied, and appellant was convicted. The Second District Court of Appeal reversed the convictions, and the Attorney General petitioned for review. The California Supreme Court granted review to consider the circumstances under which a prosecutor’s intentional misconduct which results in a mistrial precludes retrial on double jeopardy grounds. The Court reversed, holding that retrial was not barred under either the federal or state double jeopardy clause. The federal double jeopardy clause bars retrial where the prosecution commits the misconduct with the intent to provoke a mistrial. Like its federal counterpart, the state double jeopardy clause bars retrial where the prosecution intentionally commits misconduct for the purpose of triggering a mistrial. It also may also bar retrial when the prosecution, believing acquittal is likely, commits misconduct in order to thwart an acquittal. Retrial is only barred under the latter circumstance where the defendant was deprived of a reasonable opportunity for an acquittal. The state double jeopardy clause protects a broader range of interests. In this case, neither clause applied. J. Moreno dissented concluding that there was no doubt that the prosecutor intended both to violate the court’s order and to provoke a mistrial.