Prosecutor Intimidates Defense Witness: Will Double Jeopardy Prevent a New Trial?

We’ve all heard the term “double jeopardy” bantered about and have a general understanding that it prevents a defendant from being tried more than once for the same crime. But when does double jeopardy protect us? And are there circumstances when it doesn’t? A recent decision by the Superior Court of Pennsylvania sheds light on these issues.

Voice Recording

In Commonwealth v. Byrd, a defendant was charged with multiple drug, firearm, and sexual assault offenses. Because of motions that he filed to suppress evidence, he was standing trial for only one firearms offense, while appeals relating to the other charges were pending. Mid-trial, the judge received an email containing a voice recording from a woman who was set to testify as a character witness for the defendant. The message indicated that she had been threatened by the assistant district attorney (ADA) and that she was not willing to testify.

The trial court conducted a hearing in which the voice message was played. In the recording, the witness stated that the ADA had told her that the defendant was “the most dangerous man that he has ever met or seen.” She also said the ADA provided details about the other charges against the defendant and told her that he knew a lot about her, including her experience with financial hardship and a break-up.

The witness said she was scared that law enforcement would retaliate against her if she participated in the trial, that she feared being separated from her children, and that she thought she was being watched.

Following the hearing, the court declared a mistrial due to prosecutorial misconduct. After two subsequent hearings, the court dismissed the case with prejudice, meaning that the Commonwealth is barred from bringing the action a second time.

The Commonwealth appealed the finding of prosecutorial misconduct, as that is what prevented a retrial on the grounds of double jeopardy.

Double Jeopardy

The double jeopardy clauses of the Fifth Amendment to the U.S. Constitution and Article 1, §10 of the Pennsylvania Constitution protect a defendant from repeated criminal prosecutions for the same offense. Ordinarily, the law permits retrial when a defendant successfully moves for mistrial. However, if the prosecution engages in certain forms of intentional misconduct, double jeopardy bars retrial. As the Superior Court noted:

Conduct that constitutes mere prosecutorial error does not implicate double jeopardy; it is prosecutorial overreaching that cannot be condoned.

Superior Court Ruling

In ruling that double jeopardy prevented this defendant from being retried, the Superior Court agreed with the trial court’s finding that the ADA had intimidated the witness with the intent of depriving the defendant of a fair trial:

[The ADA] questioned [the witness] regarding her knowledge of [the defendant], informed [the witness] about prior criminal acts that [defendant] allegedly committed, editorialized about [defendant’s] dangerous propensity, and informed [the witness] that he was aware of many details about her life. [The ADA’s] statements placed [the witness] in fear for her own safety and for that of her family. We cannot conclude that [the ADA’s] actions were mere prosecutorial error; rather, they were intentional acts of prosecutorial overreaching implicating double jeopardy protection.


The takeaway: Prosecutorial error may result in a defendant being tried more than once for the same crime. Prosecutorial misconduct may trigger double jeopardy and preclude a retrial.