When a court declares a mistrial, what is the test for a motion for a retrial under the Double Jeopardy Clause?

MultiRegion, United States of America

The following excerpt is from U.S. v. McKoy, 78 F.3d 446 (9th Cir. 1996):

When a court declares a mistrial, "retrial will only be permitted if the defendant consented to the mistrial or if the mistrial was caused by 'manifest necessity.' " Weston, 50 F.3d at 636 (citing Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978)). "Where a mistrial has been declared at the request of the defendant, the Double Jeopardy Clause is no bar to retrial unless the defendant can show that the 'conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.' " United States v. Lun, 944 F.2d 642, 644 (9th Cir.1991) (quoting Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982)).

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