La. Admin. Code tit. 41 § II-607
Current through Register Vol. 50, No. 8, August 20, 2024
Section II-607 - Former Jeopardy, Mistrial, and WithdrawalA. Former Jeopardy. A proceeding terminated by the government after evidence is introduced on the merits, without fault of the accused, is a trial. No person may, without his consent, be tried a second time for the same offense. Former jeopardy does not apply to offenses under civilian law, but the authority to try an accused for the same acts which constitute an offense under the LCMJ may be limited by regulation. [See LCMJ Article 44a and R.C.M. 907(b)(C).]B. Mistrial. A declaration of mistrial may be ordered by the military judge when such action is manifestly necessary in the interest of justice to prevent unfairness. Mistrial is a drastic remedy and should be employed only when manifestly necessary to preserve the ends of justice. For instance, an error in admitting evidence can ordinarily be cured by striking the testimony or evidence and/or by a curative instruction to disregard. A mistrial may be granted either as to findings of some or all charges or only as to the sentence. The military judge shall inquire into the views of the parties prior to such declaration. A declaration of mistrial shall not prevent trial by another court-martial on the affected charges and specifications except when the mistrial was declared after jeopardy attached and before findings, and the declaration was an abuse of discretion and without the consent of the accused and/or the direct result of intentional prosecutorial misconduct designed to necessitate a mistrial. [See R.C.M. 915(a)-(c).]C. Withdrawal of Charges. The convening authority or a superior competent authority may, for any reason, cause any charges or specifications to be withdrawn from a court-martial at any time before findings are announced. Charges that have been withdrawn from a court-martial may be referred to another court-martial unless the withdrawal was for an improper reason. Charges withdrawn after the introduction of evidence on the general issue of guilt may be referred to another court-martial only if the withdrawal was necessitated by urgent and unforeseen military necessity. Withdrawal before trial proceedings begin carries the presumption of regularity; however the reason for withdrawal should be made part of the record. [See R.C.M. 604.]La. Admin. Code tit. 41, § II-607
Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2401 (November 2009).AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).