In U.S. v. Davis, No. 12-10938 (Feb. 12, 2013),
the Court held that the district court’s declaration of a mistrial after the trial commenced, the dismissal of two jurors, and the defendant’s refusal to proceed with a jury of less than 12, was supported by the doctrine of “manifest necessity,” and consequently did not violate Double Jeopardy.
The Court found that the action that caused the mistrial – the dismissal of one of the two jurors – was “manifestly necessary.” The juror indicated that she could not understand “a lot of things” at trial. The Court noted that it was unfeasible to halt the trial when the juror raised her hand and said she did not understand: “Who would do the explaining during the trial?” Because the dismissal of one juror was sufficient to justify a mistrial (because Davis would not consent to less than 12 jurors), the Court did not reach whether the dismissal of the second juror was manifestly necessary.
The Court noted that the district court’s failure to consult with Davis before declaring a mistrial, as required by Fed. R. Crim. P. 26.3, not a dispositive factor. “Even though the court could have conducted a more formal or structured colloquy with Davis before declaring a mistrial, given the circumstances its failure to do so was not reversible error.”