This is why I am a bit skeptical of this motion to dismiss.
It would obviously be a shocking development if the foreman and judge somehow failed to realise between them that the jury had acquitted the accused on a murder charge.
I don't see how the defence lawyers can be witnesses to the truth of that. Only what they were told later. The primary witness(es) need to testify to it.
Will they?
I am interested if something like this has ever happened before.
MOO
Found this
f 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.
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.
ubdivision (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.
Subdivision (d)
This subdivision is based upon Fed.R.Crim.P. 31(d), but differs in that the polling of the jury is to be discretionary with the court rather than a right of the defendant so as to conform to existing Massachusetts practice. That this discretion is well-settled in the Commonwealth was recently reaffirmed in
Commonwealth v. Stewart , 375 Mass. 380 (1978). See also
Commonwealth v. Valliere , 366 Mass. 479, 497 (1974);
Commonwealth v. Caine , 366 Mass. 366, 375 (1974);
Commonwealth v. Fleming , 360 Mass. 404, 408 (1971) (jurors polled); Commonwealth v. Beneficial Finance Co., supra, at 300-301. Under Rule 31 of the Federal Rules of Criminal Procedure and under the ABA Standards Relating to Trial by Jury § 5.5 (Approved Draft, 1968), a jury is to be polled only at the request of a party or upon the court's own motion. In any case, where a jury has been polled and there is not a unanimous concurrence, compare Commonwealth v. Fleming, supra, or it appears that the verdict was a compromise or other serious doubts are raised as to its integrity, see Commonwealth v. Stewart, supra, the court may declare a mistrial, or alternatively, order further deliberations. Accord, Rules of Criminal Procedure (U.L.A.) Rule 535(e) (1974).
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