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Double Jeopardy – Prosecutorial Misconduct: Retrial Following Mistrial at Defense Request — Necessity of prosecutorial overreaching<

State v. Rovaugn Hill, 2000 WI App 259, 240 Wis.2d 1, 622 N.W.2d 34
For Hill: Gerald P. Boyle

Issue: Whether reprosecution should be barred on double jeopardy grounds, because prosecutorial overreaching had caused a mistrial.

Holding: “[D]ouble jeopardy bars a retrial when the defendant has successfully moved for a mistrial, if the prosecutor acted with intent to gain another chance to convict or to harass the defendant with multiple prosecutions.” ¶12.

Here, mistrial followed from the prosecutor’s filing at trial an amended information containing reduced charges, based on his view that the jury would be confused by the elements of the charged, greater offenses. The trial court’s finding that this action was not intended to provoke a mistrial is upheld, as not clearly erroneous, and retrial therefore allowed to proceed on the amended information.

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