Formal evidentiary hearing is not required to probe prosecutor’s intent for actions leading to mistrial to determine whether retrial is barred

Mistrial/Double Jeopardy United States v. Tafoya, No. 08-2113, ___ F.3d ___ (10th Cir. Feb. 24, 2009)(New Mexico). Appeal of district court’s denial of defendant’s motion to dismiss indictment. HELD: District court did not abuse discretion by denying defendant’s request for formal evidentiary hearing to determine whether prosecutor’s actions that prompted successful defense motion for mistrial should also bar retrial. To determine whether prosecutor goaded defense into moving for mistrial and thus determine whether retrial is barred, district court must determine prosecutor’s intent was to subvert protections afforded by Double Jeopardy Clause. If district court judge is satisfied with prosecutor’s explanation and by what she witnessed in overseeing trial, there is no need for formal evidentiary hearing to probe prosecutor’s intent. Read the opinion here.