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Double Jeopardy – Prosecutorial Misconduct – Provoking Mistrial, Generally

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

Issue/Holding: Retrial is ordinarily not barred when the defendant successfully requests mistrial, except where prosecutorial overreaching, comprised of the following elements, has been shown: the prosecutor’s has “ a culpable state of mind in the nature of an awareness that his activity would be prejudicial to the defendant”; and, the prosecutor’s action was designed to provoke mistrial, ¶¶7-8. The prosecutor’s intent is a factual finding, reviewed deferentially, ¶10 (citing State v. Rovaugn Hill, 2000 WI App 259, ¶12).

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