¶37 A mistrial is warranted if the mistrial is “manifestly necessary.” The State bears the burden to demonstrate that a “‘manifest necessity’ [exists] for any mistrial ordered over the objection of the defendant.” A “manifest necessity” warranting a mistrial is a high degree of necessity. The determination whether a manifest necessity exists is a fact-intensive question. If the State does not meet this burden, the State is not permitted to commence another trial against the accused.
Issue2: Whether mistrial granted over defense objection on the ground that the defense never presented evidence to support a theory advanced in the opening statement (namely that the defendant would testify that the purported victim was a liar and thief, but the defense rested without presenting any evidence) was supported by manifest necessity.
¶68 We agree with the State that a circuit court may, in an appropriate case, declare a mistrial on the basis of an opening statement that summarizes evidence that is not produced. We disagree with the State, however, that the circuit court exercised sound discretion in granting the mistrial in the defendant’s third trial.…
¶71 We conclude that the circuit court did not exercise sound discretion in declaring a mistrial when it failed to give adequate consideration to the State’s ability to refer to the defendant’s silence and to the effectiveness of a curative jury instruction. Although the circuit court expressed its belief that the State’s response and a curative jury instruction could not rectify any prejudice caused by defense counsel’s opening statement, this belief is unfounded.
¶72 … Sound discretion includes considering alternatives such as a curative jury instruction.
¶73 The circuit court erred as a matter of law in its assessment of the State’s inability in closing argument to rebut the defense counsel’s opening statement. The circuit court overstated the difficulty the prosecuting attorney would have in both commenting on the weakness of the opening statement and avoiding error by referring to the defendant’s failure to testify.
This result should be contrasted with State v. Clyde Baily Williams, 2004 WI App 56, which denied relief on similar facts (improper defense question required mistrial). Hard, not to say impossible, to believe that a curative instruction would have worked its magic in one context but not the other. Interestingly, the supreme court in Moeck did not accept the court of appeals’ rationale for error, that the trial court improerly delegated to the prosecution the decision as to remedy, see 2004 WI App 47, ¶23. Had that rationale remained in place, future courts might have been able to say that in Moeckbut not Williams the trial court improperly delegated the mistrial decision to the prosecutor. While such a distinction seems pretty flimsy (either an instruction would have cured the harm or it wouldn’t have; if the latter, then there could have been no manifest necessity for mistrial), it is no longer available even in theory. To the extent that the Williams trial court didn’t consider the remedy of curative instruction (and there is no indication in the decison of such consideration) then Williamscan’t be reconclied with Moeck.See also U.S. v. Toribio-Lugo, 1st Cir. No. 01-2565, 7/21/04: “Where there is a viable alternative to a mistrial and the district court fails adequately to explore it, a finding of manifest necessity cannot stand.” (Holding that failure to offer defendant option of proceeding with 11-person jury after a juror went missing precluded manifest-necessity support for resultant mistrial.)