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Double Jeopardy – Prosecutorial Misconduct – Provoking Mistrial – Ascribing to Prosecutor Misconduct by State’s Witness<

State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06
For Jaimes: Joseph L. Sommers

Issue/Holding:

¶11      Next, Jaimes argues that the prosecutor’s responsibility to avoid provoking a mistrial must extend to the law enforcement officers who testify at trial …. In effect, Jaimes argues that the officer’s testimony must be imputed to the prosecutor, and when an officer testifies about explicitly excluded evidence, it is binding on the prosecutor so as to attach double jeopardy.¶12      In response to this argument, the State acknowledges that no Wisconsin court has addressed this argument. It urges us to follow other jurisdictions’ holding that a police officer’s testimony creating a basis for the mistrial—in the absence of evidence of collusion by the prosecutor’s office intended to provoke the defendant to move for a mistrial—does not constitute prosecutorial overreaching to bar a retrial. We agree …

Citing with approval, People v. Walker, 720 N.E.2d 297, 301 (Ill. App. Ct. 1999), ¶13, and several other cases, ¶13 n. 1. The court also notes: “The test for overreaching is meant to be an onerous one as many trials admittedly will have some evidentiary error, and the remedies of striking the testimony, admonishing the prosecutor or witness or issuing a cautionary instruction typically are viewed as sufficient to remove prejudice to a criminal defendant,” ¶14. There was no “evidence that the prosecutor colluded with the officer to provoke the defendant into moving for a mistrial,” and so retrial wasn’t barred, ¶15.

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