OPINION OF THE COURT BY
RICHARDSON, C.J.
The question on appeal is whether an indictment for manslaughter was properly dismissed with prejudice following two hung jury mistrials on the charge. Appellant State of Hawaii (“State”) argues that constitutional principles of double jeopardy posed no bar to further prosecution, and that the trial court abused what the State agrees was the court’s inherent power to preclude further prosecution in such circumstances. While the double jeopardy proscriptions of our federal and state constitutions did not themselves bar continued prosecution, we affirm because we do not view the trial court’s action to have been an unjustified exercise of implicit powers.
I.
On July 31, 1979, Gilbert Masaru Moriwake was indicted for manslaughter. The indictment charged that “[o]n or about the 12th
day of May, 1979, in the City & County of Honolulu, State of Hawaii,. . . [Moriwake] did recklessly cause the death of Ruby Scanlan by beating her [with his hands and feet], thereby [violating HRS § 707-702(1 )(a) (1976)
]
A three-day jury trial was had in February 1980. Moriwake apparently did not deny the homicide, but instead defended against the manslaughter charge on the ground that his state of mind with regard to Scanlan’s death did not constitute recklessness due to extreme intoxication at the time.
Following approximately ten hours of deliberation on the charge, the jury informed the judge that it could not reach a verdict. The judge, after questioning the jury regarding whether and how the deadlock might be broken, concluded that the jury was at an impasse and declared a mistrial
sua sponte.
Three months later, Moriwake was again brought to trial for manslaughter. Although before a different judge and jury, the three day jury trial was essentially the same as the first trial with regard to the evidence presented, the witnesses testifying and the legal theories argued.
Four communications from the jury to the judge during the jury’s subsequent deliberation on the charge reflected its inability to reach a verdict. After rereading instructions, providing the jury with copies of certain instructions and questioning the jury, the judge concluded that the jury was at a impasse and declared a mistrial
sua
sponte..
Soon thereafter, Moriwake moved that his indictment for manslaughter be dismissed. In an order filed July 22,1980, the trial court granted Moriwake’s motion.
The order does not set forth the bases for the trial court’s decision, but the transcript of the hearing on Moriwake’s motion includes the following statement by the judge:
There have been two trials in this case entailing essentially the
same evidence. And if there were a third trial, virtually the same evidence would very likely be presented. Both of these previous instances, there were hung juries. And the court feels that under the circumstances of this case, a third trial would pose an undue emotional, personal and financial hardship on the defendant.
Of course, if this were a situation entailing, say, murder for hire or a criminal situation, then it would be an element against dismissal. But, as the trial has indicated, [
] this entailed certain, shall we say, mitigating circumstances that were not indicative of criminal propensity as in the case, say, of murder or a criminal situation.
The State subsequently brought this appeal from the dismissal of the indictment.
II.
We view this case as involving the following two issues:
(1) Was further prosecution of Moriwake barred by constitutional proscriptions of double jeopardy?
(2) Did the trial court possess discretion to dismiss the indictment, and, if so, was such discretion properly exercised?
III.
A.
Turning first to the double jeopardy issue, we begin with our federal constitution’s ban against the subjection of any person “for the same offense to be twice putinjeopardyoflifeorlimb....” U.S. Const, amend. V. This injunction has been made applicable to the states.
Benton v. Maryland,
395 U.S. 784, 793-96 (1969).
The principle embodied in the clause has a “primary purpose. . . akin to that served by the doctrines of
res judicata
and collateral estoppel — to preserve the finality of judgments.”
Crist v. Bretz,
437 U.S. 28, 33 (1978). But equally if not more important, it stands for
the following proposition:
[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States,
355 U.S. 184, 187-88 (1957).
Accord: United States v. Jorn,
400 U.S. 470, 479 (1971) (plurality opinion); and
Arizona v. Washington,
434 U.S. 497, 503-04 (1978).
The prohibition against double jeopardy is not implicated until jeopardy has “attached.”
Serfass v. United States,
420 U.S. 377, 388 (1975). To prevent the consequences to a defendant of endless prosecution as well as to give effect to a defendant’s “valued right to have his trial completed by a particular tribunal,”
Wade v. Hunter,
336 U.S. 684, 689 (1949), such attachment need not await actual conviction or acquittal. More specifically, in a jury trial jeopardy attaches once the jury is empaneled and sworn,
Downum v. United States,
372 U.S. 734 (1963), and this rule has specifically been made applicable to the states.
Crist v. Bretz, supra,
437 U.S. at 37-38.
However, even if jeopardy may generally attach prior to judgment, reprosecution is not
perse
precluded if a trial is aborted. This was the holding in the seminal case of
United States v.
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OPINION OF THE COURT BY
RICHARDSON, C.J.
The question on appeal is whether an indictment for manslaughter was properly dismissed with prejudice following two hung jury mistrials on the charge. Appellant State of Hawaii (“State”) argues that constitutional principles of double jeopardy posed no bar to further prosecution, and that the trial court abused what the State agrees was the court’s inherent power to preclude further prosecution in such circumstances. While the double jeopardy proscriptions of our federal and state constitutions did not themselves bar continued prosecution, we affirm because we do not view the trial court’s action to have been an unjustified exercise of implicit powers.
I.
On July 31, 1979, Gilbert Masaru Moriwake was indicted for manslaughter. The indictment charged that “[o]n or about the 12th
day of May, 1979, in the City & County of Honolulu, State of Hawaii,. . . [Moriwake] did recklessly cause the death of Ruby Scanlan by beating her [with his hands and feet], thereby [violating HRS § 707-702(1 )(a) (1976)
]
A three-day jury trial was had in February 1980. Moriwake apparently did not deny the homicide, but instead defended against the manslaughter charge on the ground that his state of mind with regard to Scanlan’s death did not constitute recklessness due to extreme intoxication at the time.
Following approximately ten hours of deliberation on the charge, the jury informed the judge that it could not reach a verdict. The judge, after questioning the jury regarding whether and how the deadlock might be broken, concluded that the jury was at an impasse and declared a mistrial
sua sponte.
Three months later, Moriwake was again brought to trial for manslaughter. Although before a different judge and jury, the three day jury trial was essentially the same as the first trial with regard to the evidence presented, the witnesses testifying and the legal theories argued.
Four communications from the jury to the judge during the jury’s subsequent deliberation on the charge reflected its inability to reach a verdict. After rereading instructions, providing the jury with copies of certain instructions and questioning the jury, the judge concluded that the jury was at a impasse and declared a mistrial
sua
sponte..
Soon thereafter, Moriwake moved that his indictment for manslaughter be dismissed. In an order filed July 22,1980, the trial court granted Moriwake’s motion.
The order does not set forth the bases for the trial court’s decision, but the transcript of the hearing on Moriwake’s motion includes the following statement by the judge:
There have been two trials in this case entailing essentially the
same evidence. And if there were a third trial, virtually the same evidence would very likely be presented. Both of these previous instances, there were hung juries. And the court feels that under the circumstances of this case, a third trial would pose an undue emotional, personal and financial hardship on the defendant.
Of course, if this were a situation entailing, say, murder for hire or a criminal situation, then it would be an element against dismissal. But, as the trial has indicated, [
] this entailed certain, shall we say, mitigating circumstances that were not indicative of criminal propensity as in the case, say, of murder or a criminal situation.
The State subsequently brought this appeal from the dismissal of the indictment.
II.
We view this case as involving the following two issues:
(1) Was further prosecution of Moriwake barred by constitutional proscriptions of double jeopardy?
(2) Did the trial court possess discretion to dismiss the indictment, and, if so, was such discretion properly exercised?
III.
A.
Turning first to the double jeopardy issue, we begin with our federal constitution’s ban against the subjection of any person “for the same offense to be twice putinjeopardyoflifeorlimb....” U.S. Const, amend. V. This injunction has been made applicable to the states.
Benton v. Maryland,
395 U.S. 784, 793-96 (1969).
The principle embodied in the clause has a “primary purpose. . . akin to that served by the doctrines of
res judicata
and collateral estoppel — to preserve the finality of judgments.”
Crist v. Bretz,
437 U.S. 28, 33 (1978). But equally if not more important, it stands for
the following proposition:
[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States,
355 U.S. 184, 187-88 (1957).
Accord: United States v. Jorn,
400 U.S. 470, 479 (1971) (plurality opinion); and
Arizona v. Washington,
434 U.S. 497, 503-04 (1978).
The prohibition against double jeopardy is not implicated until jeopardy has “attached.”
Serfass v. United States,
420 U.S. 377, 388 (1975). To prevent the consequences to a defendant of endless prosecution as well as to give effect to a defendant’s “valued right to have his trial completed by a particular tribunal,”
Wade v. Hunter,
336 U.S. 684, 689 (1949), such attachment need not await actual conviction or acquittal. More specifically, in a jury trial jeopardy attaches once the jury is empaneled and sworn,
Downum v. United States,
372 U.S. 734 (1963), and this rule has specifically been made applicable to the states.
Crist v. Bretz, supra,
437 U.S. at 37-38.
However, even if jeopardy may generally attach prior to judgment, reprosecution is not
perse
precluded if a trial is aborted. This was the holding in the seminal case of
United States v. Perez,
22 U.S. 579 (1824), in which the Court stated the rule that principles of double jeopardy pose no bar to reprosecution after discharge of a jury if there was a “manifest necessity for.. . [such discharge], or the ends of public justice would otherwise be defeated.”
Id.
The rule has remained applicable because of a continuing recognition that “a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury. . . would be too high a price to pay for the added assurance of personal security and free
dom from government harassment which such a mechanical rule would provide.”
United States v. Jorn, supra,
400 U.S. at 480. Stated differently:
Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial be concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.
Arizona v. Washington, supra, 434
U.S. at 505.
Accord: Wade v. Hunter, supra
(defendant’s right to complete trial with chosen jury “must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.”).
Which of the “variety of circumstances” resulting in mistrial declarations rise to the level of “manifest necessity” so as to allow reprosecution has been the subject of much discussion.
See generally
Schulhofer,
Jeopardy and Mistrials,
125 U. Pa. L. Rev. 449 (1977). But what is generally not in dispute is that a mistrial ordered
sua sponte
because of a true inability of the jury to agree upon a verdict represents the “classic example” of manifest necessity.
Gori v. United States,
367 U.S. 364, 370-71 (1961) (Douglas, J., dissenting);
Downum v. United States, supra,
372 U.S. at 735-36. And in reviewing hung jury mistrial declarations in the double jeopardy context, appellate courts are counselled as follows:
[I]n this situation there are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding whether or not “manifest necessity” justifies a discharge of the jury. On the one hand, if he discharges the jury when further deliberations may produce a fair verdict, the defendant is deprived of his “valued right to have his trial completed by a particular tribunal.” But if he fails to discharge a jury which is
unable to reach a verdict after protracted and exhausting deliberations, there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. . . . The trial judge’s decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court.
Arizona v. Washington, supra,
434 U.S. at 509-10.
We applied the federal scheme in
State v. Pulawa,
58 Haw 377, 569 P.2d 900 (1977),
State v. Mayo,
62 Haw. 108, 612 P.2d 107 (1980),
and
State v. Martin,
62 Haw. 364, 616 P.2d 193 (1980).
,
In
again doing so here,
we think it clear from the record that the reasons for which mistrials were declared in both prosecutions constituted “classic examples” of “manifest necessity”: a true inability on the part of the jury to reach a verdict after diligent effort by the trial court to encourage a “considered judgment.” Accordingly, our federal constitution’s double jeopardy proscription, as heretofore interpreted by the United States Supreme Court, did not mandate dismissal of Moriwake’s indictment.
We also think this conclusion to be consistent with the double jeopardy bar set forth in our own constitution.
We are fully cognizant that greater protection may be afforded criminal defendants under our state proscription than the minimum safeguards we must implement under the federal bar.
See generally: State v. Huelsman,
60 Haw. 71, 88, 588 P.2d 394, 405 (1978) (state constitution guarantees against deprivation of liberty without due process not necessarily limited to those provided under analogous provisions of federal constitution);
Huihui v. Shimada,
64 Haw. 527, 531, 644 P.2d 968, 971 (1982). However, we do not view this as an appropriate case in which to address the question.
B.
We next consider whether our trial courts have the power to dismiss
sua sponte
an indictment with prejudice and over the objection of the prosecuting attorney. Within the bounds of duly exercised discretion, we think that they do.
Our constitution vests the “judicial power of the State” in the courts. Haw. Const, art. VI, § 1. Nowhere in that document is the exact nature of the “judicial power” defined, and we agree that the “essentially inherent or implied powers of the court are by their nature impracticable if not impossible of all-inclusive enumeration.”
People v. Sidener,
25 Cal. Rptr. 697, 705, 375 P.2d 641, 649 (Cal. 1962) (Schauer, J., dissenting),
overruled in People v. Tenorio,
89 Cal. Rptr. 249, 250, 473 P.2d 993, 994 (Cal. 1970). But speaking generally, the “inherent power of the court is the power to protect itself; the power to administer justice whether any previous form of remedy has been granted or not; the power to promulgate rules for its practice; and the power to provide process where none
exists.” In re Bruen,
172 P.1152, 1153 (Wash. 1918).
That aspect of the judicial power which seeks to “administer justice” is properly invoked when a trial court
sua sponte
dismisses an indictment with prejudice following the declaration of one or more mistrials because of genuinely deadlocked juries, even though the defendant’s constitutional rights are not yet implicated.
In so stat
ing, we are cognizant of the deference to be accorded the prosecuting attorney with regard to criminal proceedings, but such deference is not without bounds. As stated elsewhere:
Society has a strong interest in punishing criminal conduct. But society also has an interest in protecting the integrity of the judicial process and in ensuring fairness to defendants injudicial proceedings. Where those fundamental interests are threatened, the “discretion” of the prosecutor must be subject to the power and responsibility of the court.
State v. Braunsdorf,
297 N.W.2d 808, 817 (Wis. 1980) (Day, J., dissenting).
In considering whether such power and responsibility were properly exercised, we in turn will accord deference to the conclusion of the trial court for much the same reason that we will seldom question the propriety of a hung jury mistrial declaration.
See Arizona v. Washington, supra,
434 U.S. at 509-10. But we think that the magnitude of the respective interests of society and of criminal defendants which are implicated in this area of the law requires that we more fully delineate the parameters within which this discretion is properly exercised.
Simply put, “[i]t is a matter of balancing the interest of the state against fundamental fairness to a defendant with the added ingredient of the orderly functioning of the court system.”
State v. Braunsdorf, supra,
297 N.W.2d at 817. The factors which the trial court should consider in undertaking this balance include the following: (1) the severity of the offense charged; (2) the number of prior mistrials and the circumstances of the jury deliberation therein, so far as is known; (3) the character of prior trials in terms of length, complexity and similarity of evidence presented; (4) the likelihood of any substantial difference in a subsequent trial, if allowed; (5) the trial court’s own evaluation of relative case strength; and (6) the professional conduct and diligence of respective counsel, particularly that of the prosecuting attorney.
Cf. State v. Lundeen,
297
N.W,2d 232, 236 (Iowa App. 1980) (list of twelve “relevant considerations”).
Without suggesting that trial courts are not free, within the bounds of properly exercised discretion, to differ, we proffer that in most cases, serious consideration be given to dismissing an indictment with prejudice after a second hung jury mistrial.
Again, this is not to say that the preclusion of even a second trial or the allowance of a third or even more trials would not be appropriate in certain circumstances.
In this case, two full, nearly identical trials on a serious charge were held, following which two separate juries were unable to reach a verdict despite sound judicial efforts to encourage a “considered judgment.” There was no indication that a third trial would proceed in a manner any different than did the previous two. Considering this and other evidence in the record, we do not perceive the trial court to have abused its discretion in.dismissing the indictment of Moriwake.
Lawrence R. White,
Deputy Prosecuting Attorney, for plaintiff-appellant.
EdmundK. U. Yee (Myles T. Yamamoto
on the brief;
Yamamoto Yee
of counsel) for defendant-appellee.
IV.
Constitutional principles of double jeopardy posed no implicit bar to reprosecution of defendant Moriwake. However, the trial court properly exercised its inherent power to dismiss the indictment with prejudice. Accordingly, the judgment is affirmed.