Our conversation about double jeopardy is an important one because nothing is worse than being retried for the same thing twice. It can be a highly expensive process to go through trial and its possible it did need to happen a second time to begin with if the laws are carefully examined. In Stone v. Superior Court, 31 Cal. 3D 503 (1982), the California Supreme Court considered a situation in which the jury foreman announced that the jury was unanimous for acquittal of first and second degree murder. However, some of the jurors had voted for a finding of guilty for voluntary manslaughter, some for involuntary manslaughter, some for justifiable homicide and none for acquittal. The trial judge concluded that the jury was hopelessly deadlocked and declared a mistrial. The appellate court concluded that it is a double jeopardy violation for the trial judge to fail to return a partial verdict finding the defendant not guilty of the two greater offenses of which the jury had concluded unanimously that the defendant was not guilty. However, in Bluford v. Arkansas 132 S.Ct. 2044 (2012) the United States Supreme Court held that double jeopardy did not bar retrial of murder charges after the jury announced that it had unanimously agreed against them but remained deadlocked on lesser included offenses. After an Allen charge, the jury deliberated further but reported it was still deadlocked on the lesser charges. The Supreme Court based its holding on the failure of the jury to formally provide a verdict after it had received the Allen charge and again reported its deadlock on the lesser counts in the indictment. In Hall v. State 244 Ga. 86 (1979), the court limited still further the application of the Double Jeopardy Clause by holding that if the insufficiency of the evidence results from a trial error, this does not prevent the retrial of the defendant. In this bad check case, the manager of the Bank’s bookkeeping department testified from records which he admitted he did not prepare and which were not properly authenticated. The court excluded the records since a proper foundation was not made under former OCGA 24-3-14 now 24-8-803(6). On appeal, the court held that it was error for the trial judge not to strike the manager’s testimony. The striking of his testimony would have resulted in insufficient evidence to warrant a conviction. However, the court concluded that the trial error would not prevent a retrial. The CGA 24-8-803 6, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness and subject to the provisions of chapter 7 of this title, a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, B) made by, or from information transmitted by, a person with personal knowledge and business duty to report; C) kept in the course of a regularly conducted business activity; and D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with paragraph 11 or 12 of code section 24-9-902 or by any other statute permitting certification. The term business as used in this paragraph includes any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports shall be admissible under paragraph 8 of this code section and shall not be admissible under this paragraph. The Hall case shows the importance of having an attorney that understands the evidence code and the proper foundation required to admit evidence. Many times opposing counsel will attempt to improperly admit evidence that does not have proper foundation and should actually be excluded from evidence. This can obviously make the difference between winning and losing a case and where good lawyering becomes absolutely necessary. A case that can be dismissed and freedom achieved for the client can turn into a conviction with horrible ramifications for the client going forward. Contact a Paulding County criminal defense lawyer today for a free consultation on your criminal case. Hiring a qualified lawyer can be the difference between jail and freedom. Contact Howard and Arca attorneys at law today.

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