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What is a Retrial?

Sometimes in a criminal case, a judge will order that the case must be retried. A retrial might occur for various reasons, such as a deadlocked jury. In general, a retrial will only be granted if there were serious mistakes or errors in the original trial. It is usually required that the errors resulted in a reversal of the verdict.

Judges can be somewhat reluctant to grant a retrial- they are only granted if absolutely necessary to pursue the aim of justice. This because all criminal defendants are protected by double jeopardy laws, meaning that they cannot be punished for the same crime twice. If the defendant is found not guilty, the prosecutor will usually not have an opportunity for retrial unless there were serious errors involved in the ruling.

When is a Retrial Available?

A retrial is typically requested by the prosecutor, and is only available by order from the judge. A judge will only order a retrial if any of the following occurred in the original trial:

  • Attorney misconduct
  • Mistrial in the original court for “manifest necessity”, i.e., a key witness or party gets ill
  • Prejudicial error which made the trial unfair, such as a juror tampering with evidence
  • Hung jury- the jury must come to a unanimous agreement of not guilty or guilty in order for a verdict to be properly issued
  • Breach of plea bargain by defendant: if defendant has breached their duties as ordered by the court, the original charges can be reinstated

What is the Difference between a Retrial and an Appeal?

An appeal is different from a retrial in several important ways. First, an appeal is only available if there has been an error in the application of law in the original trial. For example, an appeal can be granted if the judge committed an error regarding jury instructions on which laws apply to the case. An appeal is not available for factual errors, such as when a there is a dispute over a witness’ height. 

Also, an appeal is not really a new trial in the sense that no new evidence will be weighed and generally no new arguments are presented. The appeals court will be working with material already presented in the lower court (i.e., transcripts), and will be dealing with the application of laws rather than evidential matters.  

On the other hand, a retrial may be treated like a brand new trial, as new evidence may be presented. Indeed, sometimes the reason a retrial is necessary is that there is new evidence that was not available before. Also, sometimes new lawyers will be working on the retrial. A new jury will be selected and oftentimes a new judge will be presiding over case. Therefore, a retrial will always be much different from the original trial.

Also, the lineup of witnesses is usually different in a retrial. Sometimes new witnesses who were not present at the original trial will testify at the retrial. More often, the old witnesses from the original trial may become unavailable due to death or illness. As such, the jury might be presented with a much different perspective than in the original trial.

Do I Need a New Lawyer for a Retrial?

Sometimes a new lawyer is absolutely necessary for a retrial, especially if the retrial is due to the misconduct of your own attorney. Your old lawyer will be required to transfer all materials to your new lawyer, who will help prepare you for the retrial. Just because you are already familiar with the original trial does not mean that you don’t need to be prepared- sometimes new issues or laws can arise and must be addressed during the retrial.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 05-10-2013 02:46 PM PDT

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