Before ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives.
When a judge is thinking about declaring a mistrial, they cannot just do it on their own. They must first give both sides a chance to speak up.
Each defendant and the government gets to say whether they agree with ending the trial, disagree, or propose another way to handle the problem. This gives everyone a fair say before the judge makes a final decision.
Summary generated March 09, 2026
Notes of Advisory Committee on Rules—1993
Rule 26.3 is a new rule designed to reduce the possibility of an erroneously ordered mistrial which could produce adverse and irretrievable consequences. The Rule is not designed to change the substantive law governing mistrials. Instead it is directed at providing both sides an opportunity to place on the record their views about the proposed mistrial order. In particular, the court must give each side an opportunity to state whether it objects or consents to the order.
Several cases have held that retrial of a defendant was barred by the Double Jeopardy Clause of the Constitution because the trial court had abused its discretion in declaring a mistrial. See United States v. Dixon, 913 F.2d 1305 (8th Cir. 1990); United States v. Bates, 917 F.2d 388 (9th Cir. 1990). In both cases the appellate courts concluded that the trial court had acted precipitately and had failed to solicit the parties’ views on the necessity of a mistrial and the feasibility of any alternative action. The new Rule is designed to remedy that situation.
The Committee regards the Rule as a balanced and modest procedural device that could benefit both the prosecution and the defense. While the Dixon and Bates decisions adversely affected the government’s interest in prosecuting serious crimes, the new Rule could also benefit defendants. The Rule ensures that a defendant has the opportunity to dissuade a judge from declaring a mistrial in a case where granting one would not be an abuse of discretion, but the defendant believes that the prospects for a favorable outcome before that particular court, or jury, are greater than they might be upon retrial.
Committee Notes on Rules—2002 Amendment
The language of Rule 26.3 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
The information on this site is for general reference only and is not legal advice.
Rule text may not reflect the most recent amendments. Always verify against official
sources before relying on any rule in a legal matter.
By using this site, you agree to our
Terms of Service and Privacy Policy,
whether or not you click this button.