An interesting decision from the Colorado Court of Appeal, Doumbouya v. County Court (Dec. 24, 2009):
Defendant … was charged with assaulting his estranged wife and one of her friends, with threatening the wife, and with disturbing the peace.
Defendant’s theory of defense was that his estranged wife had fabricated the claims to gain leverage in a contentious custody battle involving the couple’s infant son. At the beginning and again at the end of opening statement, defense counsel told the jury of the defense contention that the wife would “do anything,” including making false claims against defendant, to keep custody.
The wife was the first witness against defendant. Defense counsel began cross-examination by asking several questions about the then-ongoing marriage dissolution and child custody proceedings….Two questions followed:
Q. You know that [defendant] is from Africa?
A. Yes.
Q. You know that if he is found guilty of this he’ll be deported?
The prosecution objected before the second question was answered, stating it was “completely improper to bring that up in this proceeding.” The court promptly ordered a recess.
Outside the jury’s presence, the prosecutor moved for a mistrial. He argued the jury had been “irrevocably tainted” by questioning that was “a ploy to invoke sympathy for the defendant” and amounted to “probably the worst violation [he had] ever seen.” Defense counsel responded that the question went to the “heart of our defense” and defendant was constitutionally entitled to ask it. Counsel proffered that she had spoken with defendant’s immigration attorney, that this assault conviction would lead to deportation, and that the wife “knows all of that.”
The county court “vehemently disagree[d]” with defense counsel’s arguments. It observed that immigration, whether legal or illegal, is a “hot button topic” in today’s society. While noting that the question could elicit sympathy from a jury concerned that defendant might be deported and never see his son again, it also observed that defendant could have been prejudiced (and properly could have objected) had the prosecution injected immigration and deportation issues into the case.
When the court stated its intent to declare a mistrial, defense counsel objected and suggested any prejudice could be cured by a limiting instruction. The court disagreed, stating the “genie is out of the bottle.” It accordingly discharged the jury.
The question is whether there was “manifest necessity” for the mistrial, such that the defendant could be retried; if there was no manifest necessity, a retrial would violate the Double Jeopardy Clause. The court concludes that the questioning was proper, given the potential relevance of the questioning to the wife’s bias:
It would be constitutionally problematic to preclude relevant impeachment simply because immigration is a “hot button topic.” … Defendant has shown that the cross-examination question was potentially relevant to impeaching the key prosecution witness. The theory of defense required a motive for defendant’s estranged wife to accuse him falsely. That motive, according to the defense, was a conviction that would lead to the wife’s being awarded custody of the couple’s son. If that is a proper theory to offer the jury -– as the trial court recognized by allowing cross-examination on the child custody dispute -– so too is the questioning regarding the wife’s belief that a conviction could lead to defendant’s deportation, which would effectively give wife full-time custody and thus inure even further to her benefit.
The mistrial was therefore not necessary (or even, I take it, proper), and reprosecution is thus forbidden: “It thus appears that defendant had a right, possibly of constitutional magnitude, to inquire into the wife’s understanding of the immigration consequences of a conviction. Nonetheless, we need not hold definitively that there were no possible grounds on which the trial court properly could have precluded the cross-examination. The fact that we have grave doubts as to the propriety of precluding the cross-examination means the prosecution has not carried its heavy burden … of demonstrating the necessity for a mistrial.”