In criminal law, most cases never make it to trial, let alone retrial. In cases that do go to trial, a small percentage are retried. Cases may be retried because of serious errors in the original trial that may have caused an unfair or improper result, or if significant evidence of innocence comes to light.

The 5th Amendment contains the Double Jeopardy Clause which guarantees that no person shall be tried twice for the same crime. This will come into effect if a person is charged with a crime, then found innocent, and then charged with the same crime again. This means that the prosecutor is usually unable to request a retrial unless of some grave mishandling of justice.

When is a Retrial Available?

Typically, the defendant will file a motion for a retrial after a guilty verdict. If the judge denies the motion, then the defendant may file an appeal to a higher court asking to overrule the judge and grant a new trial. The following are a few examples in which a new trial may be granted in the interest of justice:

  • Attorney misconduct;
  • “Hopelessly deadlocked” jury, meaning they could not come to a unanimous verdict of guilty or not guilty;
  • Prejudicial error which was unfair and swayed the trial, such as juror misconduct or bias;
  • Manifest necessity, which is an unforeseeable and overwhelming circumstance that makes the trial unfair or impossible to reach a fair result, such as the unavailability of a key witness, illness of counsel, or juror misconduct;
  • Newly discovered evidence; and/or
  • The judge did not recuse themselves even though there was a conflict of interest.

What is the Difference Between a Retrial and an Appeal?

An appeal is not a new trial of the case in question. Usually, an appeals court will not take into consideration new evidence or new witnesses. Instead, its decisions are based on whether there were errors in the trial’s procedure or in the judge’s interpretation of the law. An appeals court is concerned with the application of the laws, and not the evidence.

Whereas a retrial is a new trial, and the following are possible:

  • New evidence may be considered;
  • New witnesses may testify;
  • New attorneys may be involved;
  • New jury will be selected; and
  • New judge may preside over the trial.

With a retrial, you are allowed to present an argument that you did not present in the first trial. You are also allowed to skip an argument, like an argument that was weak or not as effective. Essentially a retrial will be a completely new trial where the previous trial will have no impact on the retrial.

Do I Need a New Lawyer for a Retrial?

If you are seeking a retrial, it may be necessary to consult a new criminal lawyer, particularly if your previous attorney engaged in any misconduct on your case. Getting a new trial is not easy, but it is possible. Your previous attorney is required to transfer all materials to your new lawyer, who will then go over your case, prepare motions to file with the court, advise you of your rights, and represent your best interests in court.