Asking for a Mistrial in Arizona Can Open the Door to a Second Trial

The Arizona Supreme Court ruled on October 26, 2026 that a defendant who moves for a mistrial without conditioning the request on dismissal with prejudice has consented to the mistrial. Double jeopardy then does not bar the State from trying the case again. The decision, Robbins v. State ex rel. Mitchell, came out of a Maricopa County prosecution and vacated a court of appeals opinion that had held a retrial would violate double jeopardy.

Any condition on a mistrial motion has to be stated before the judge rules on it. An objection made after the judge grants the mistrial cannot convert an unconditional request into a conditional one, and it cannot take the request back. James E. Novak has defended criminal cases across Maricopa County for more than 20 years. I read this decision as a warning about the moment a trial goes wrong, when the response has to be decided quickly.

When Can Arizona Retry a Case After a Mistrial?

A mistrial is a ruling that ends a trial before the jury reaches a verdict, leaving the charges unresolved. Article 2, Section 10 of the Arizona Constitution says no person shall “be twice put in jeopardy for the same offense,” and the Court treats that clause and the federal one as offering the same protection.

The protection has two well-established limits. Arizona may retry a case after a mistrial when the defendant consented to it, or when the mistrial was manifestly necessary, meaning the trial could not fairly continue. Either one is enough on its own. A defendant who asks for the mistrial has generally consented.

How a Precluded Reference Ended the Robbins Trial

The two defendants in Robbins were charged with money laundering, illegal control of an enterprise, and attempted trafficking in stolen property. A.R.S. § 13-2307 defines that offense at its base level as recklessly trafficking in the property of another that has been stolen. Before trial, the judge barred the State from using PayPal and eBay records it had disclosed late.

During trial, the State played a recorded interview and planned to stop it before the precluded material came up. Before that point, a detective on the recording mentioned “bank records” showing “millions of dollars worth of products.” Defense counsel objected and moved for a mistrial, then added a request that the case be dismissed with prejudice. The judge granted the mistrial and denied the dismissal, finding the State’s error was neither intentional nor in bad faith. Both defense lawyers then tried to withdraw their mistrial requests. The judge’s answer was that the request had been made, considered, and granted.

In a theft and stolen-property prosecution built on financial records, a dollar figure goes to the center of the case. The trial judge found it “highly probable” that the reference would influence the jury’s decision-making, and the Supreme Court called it highly inculpatory.

What the Court Held About Consent

The Court’s reasoning turned on four points about how the defense made its request:

• The word “additionally”: asking the court to “additionally” dismiss with prejudice sought separate relief and did not make the mistrial request conditional.
• Joining a co-defendant’s motion: the second lawyer said he would “join in” his colleague’s “sentiment,” which the Court read as joining both motions. A co-defendant who wants different relief has to say so explicitly.
• Timing: a request to withdraw or limit a mistrial motion counts only if it comes before the judge rules.
• Objections after the ruling: statements made after the ruling cannot show that the earlier request was conditional or ambiguous.

The Court said a contrary rule would encourage ambiguous mistrial motions and invite gamesmanship. The practical effect is that the defense carries the burden of saying exactly what it wants, on the record, before the judge decides.

If your trial ended in a mistrial your own side requested and the State intends to try the case again, I would want to see the transcript of that exchange. If that is where your case sits, call me at (480) 413-1499. The initial consultation is free.

Prosecutor Misconduct and the Second Ground for Retrial

The consent rule has a recognized exception. Under the federal precedent the Court applied, retrial is barred where the government intended to provoke the defendant’s mistrial request. The Court described that conduct as bad faith by a judge or prosecutor meant to harass the defendant or gain a better chance to convict. In Robbins, the trial court found the prosecutor’s error unintentional, and the court of appeals agreed.

The Court also upheld the mistrial on a second, independent ground. A trial judge may find a mistrial manifestly necessary when a verdict would certainly be reversed on appeal or when the jury can no longer reach an impartial verdict, and either prong is sufficient. The trial judge here relied on the second one. The Court pointed to the defense lawyers’ own arguments, made while asking for the mistrial, that the harm was “not something that can be corrected,” as confirmation that the finding was sound. The arguments that win a mistrial can later be used to justify it.

The opinion also restated the choice a defendant faces after a serious error at trial. One path is to keep going with the jury already seated and possibly end the case with an acquittal. The other is to abandon a trial that may already be tainted, accepting that the State can bring the case again.

Questions About Mistrials and Retrial in Arizona

Can the State Retry a Case After a Mistrial in Arizona?

In most cases, yes. Double jeopardy does not bar a retrial when the defendant consented to the mistrial or when the mistrial was manifestly necessary. A defendant who moved for the mistrial is generally treated as having consented.

Can a Defendant Withdraw a Mistrial Motion After the Judge Grants It?

Not once the judge has ruled. Under the October 26, 2026 Robbins decision, a defendant who wants to withdraw or limit a mistrial request must do so before the trial court rules. Objections made after the ruling do not undo the consent the motion gave.

Does Prosecutor Misconduct Prevent a Retrial?

Only in narrow circumstances. Retrial is barred when the government intended to provoke the defendant into asking for a mistrial. An unintentional error by the prosecutor, like the one in Robbins, does not bar a second trial.

Talk to a Tempe Criminal Defense Attorney Before the Case Is Retried

A retrial gives the State a chance to fix whatever went wrong the first time, and preparation for it starts as soon as the mistrial is declared. The Law Office of James E. Novak defends felony and misdemeanor charges in the Tempe, Mesa, Chandler, Gilbert, Scottsdale, and Phoenix courts and throughout Maricopa County. Call (480) 413-1499 or contact my office for a free initial consultation. I am available 24 hours a day.