Double Jeopardy Bar Based on Prosecutorial Misconduct Intentionally Undertaken to Deny a Fair Trial – Proof of Intent 

Com. v. Brown, 2016 WL 3153970 (Pa. Super 2016) (NonPrecedential), allocatur granted, 10 EAP 2017 (Majority)



The issue the Court will decide in Brown is whether, in deciding to prohibit a retrial based on double jeopardy grounds because of intentional prosecutorial conduct designed to deny a fair trial, the intent of the prosecutor must be established based on factual findings of the original trial judge or a hearing based on further testimony.


Three co-defendants were convicted of second degree murder based on the testimony of an accomplice who had entered into a plea agreement. On appeal, Superior Court reversed and ordered a new trial because of two specific instances of prosecutorial misconduct involving the prosecutor’s improper attempts to bolster the credibility of the accomplice-turned-government-witness, once during trial, and once in closing arguments, each of which the Superior Court found on the basis of the trial transcript to be deliberate and highly prejudicial attempts to destroy the objectivity of the jury and prevent the jury from rendering a true verdict.

On remand a different judge granted motions to dismiss on double jeopardy grounds based on the “intent to deny a fair trial” rationale adopted in Com. v. Smith, 615 A. 2d 321 (Pa. 1992)(double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial). The Superior Court affirmed dismissal on double jeopardy grounds.  The Supreme Court granted allocatur to address whether factual findings of the original trial judge or a hearing based on further testimony are required to support a finding of intentional prosecutorial misconduct before dismissal on double jeopardy grounds can be granted.

For more information, contact Kevin McKeon or Dennis Whitaker