Joseph Montano v. Texas

The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense. It grants a criminal defendant a right to have his “trial completed by the first jury empaneled to try him.” Oregon v. Kennedy, 456 U.S. 667 (1982). One exception to this rule is retrial is permitted if the defendant consented to the mistrial. Id. at 674. Additionally, this court as held that a court has discretion to correct “plain errors or defects affecting substantial rights” that were forfeited because not timely raised in the district court, which it should exercise only if the errors “seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725 (1993). The questions presented are: If the underlying reason for a sua sponte declaration of mistrial was in plain error, does Olano v. United States override the consent requirement of Oregon v. Kennedy? Also, does expressing a desire to continue with the tribunal satisfy the consent requirement of Oregon v. Kennedy?