I'm not seeing the anomalies.
(b) Several offenses or defendants
If there are two or more offenses or defendants tried together, the jury may with the consent of the judge at any time during its deliberations return or be required by the judge to return a verdict or verdicts with respect to the defendants or charges as to which a verdict has been reached; and thereafter the jury may in the discretion of the judge resume deliberation. The judge may declare a mistrial as to any charges upon which the jury cannot agree upon a verdict; provided, however, that the judge may first require the jury to return verdicts on those charges upon which the jury can agree and direct that such verdicts be received and recorded.
Subdivision (b)
This subdivision permits a jury in multiple-defendant or multiple-offense cases, with the consent of the court, to return a verdict at any time during their deliberations with respect to charges or defendants as to which a verdict has been reached. This rule also permits the court to require the return of such verdicts before the jury has reached a verdict as to all the defendants or charges. In either case, if the court directs, the jury is to continue its deliberations after rendering the verdicts under this subdivision. To the extent that this rule permits the jury to return such verdicts without having reached a decision on all the charges or defendants, it is consistent with Fed.R.Crim.P. 31(b)-(c). Accord Rules of Criminal Procedure (U.L.A.) Rule 535(c)-(d) (1974).
This rule also provides that the court may declare a mistrial in cases where the jury is unable to reach a verdict. However, it must first receive and record the verdicts which the jury can agree upon. See ABA Standards Relating to Trial by Jury §§ 5.4-.5 (Approved Draft, 1968); Rules of Criminal Procedure (U.L.A.), supra, Rule 541.
Subdivision (b) does not prohibit retrial of those defendants as to whom the jury is unable to reach a verdict. This is consistent with Fed.R.Crim.P. 31(b), which provides that, in cases of multiple defendants, disagreement as to one or more defendants has no effect upon the verdict as to any other defendant, and such defendant may be retried without violating the protection of the double jeopardy clause. 8A J. MOORE, FEDERAL PRACTICE para. 31.02[2] (1978 rev.). It has long been settled that jeopardy does not attach where the jury is discharged after inability to reach a verdict.
United States v. Perez , 22 U.S. 579, 9 Wheat. 579 (1824);
Thames v. Commonwealth , 365 Mass. 477 (1974). It is within the discretion of the court to declare a mistrial where there is a “manifest necessity.” United States v. Perez, supra at 580. Unless such “manifest necessity” exists, a second prosecution will be barred by the double jeopardy clause. Since Perez, it has been held that where the jury has been unable to agree upon a verdict, the declaration of a mistrial is a “classic example” of manifest necessity.
United States v. Castellanos , 478 F.2d 749, 751 (2d Cir.1973). Thus the defendant may be retried without twice being placed in jeopardy.
