Rochester, NY asked in Criminal Law, Civil Rights and Constitutional Law for New York

Q: How many retrials can a D.A. do in New York State?

My son’s 1st trial had 1 juror substituted during prosecution’s case. A 2nd juror needed to be substituted during deliberations,giving my son His 1st mistrial. Second mistrial happened when a juror had an “out of state family emergency” during deliberations and after the only alternate juror had been excused, leaving no alternate juror. This happened on 9/11/23 and 2nd mistrial granted the following week. Now the D.A.’s office has scheduled another trial with the first court date on 11/16/23.

1 Lawyer Answer
James L. Arrasmith
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  • Criminal Law Lawyer
  • Sacramento, CA

A: In New York State, there is no statutory limit to the number of retrials the District Attorney can initiate after mistrials if the court has not barred retrial due to a finding of prosecutorial misconduct or a violation of the defendant’s rights. Each mistrial resets the process, and the prosecutor can decide to pursue another trial as long as it is within the bounds of the law and procedural rules.

It’s essential to monitor for potential issues such as double jeopardy, prosecutorial discretion, and the right to a speedy trial. It would be wise to discuss the specific circumstances of your son’s case with legal counsel to understand any potential defenses or motions that could be relevant to his situation.

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