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Misconduct by Prosecutor Does Not Bar Retrial on Molestation Charges

January 19, 2018

In Harris v. State, the Georgia Court of Appeals held that the trial court did not err in denying the defendant’s plea in bar in which he asserted that double jeopardy barred a subsequent prosecution on child molestation charges.

The record revealed that prior to trial, the trial court granted the defendant’s motion in limine to redact a portion of a video of the defendant’s interview with an investigator. At trial, however, the prosecutor played the unredacted video to the jury.

The defendant made a motion for a mistrial which was granted by the trial court over the prosecutor’s objection. The defendant then filed a plea in bar asserting that double jeopardy barred his further prosecution. The motion was denied by the trial court after finding that the prosecutor played the unredacted video by accident and had no intent to cause a mistrial.

On appeal, the Court noted that where a prosecutor has acted intentionally to cause the defense to move for a mistrial, the double jeopardy clause would bar a retrial. The Court, however, explained that even where a prosecutor’s misconduct is intentional and sufficient to warrant a mistrial, a retrial will not be barred unless it is shown that the prosecutor’s intent was to goad the defendant into moving for a mistrial in order “to abort the trial and to subvert the protections afforded by the Double Jeopardy Clause.”

The Court held that the record showed that the unredacted video was played not for the purpose of subverting the double jeopardy clause but by accident, and that the prosecutor even wished to continue with the trial. The prosecutor also stated that she had been confident the defendant would be convicted at the first trial. At a later hearing, the prosecutor explained that she had merely forgotten that she needed to redact the video.

Though the defendant asserted that the prosecutor’s conduct gave rise to a presumption of unlawful intent, the Court held that the prosecutor’s conduct was not so blatant or so contrary to the basic rules of prosecutorial procedure to warrant such a finding.

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