The military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings. A mistrial may be declared as to some or all charges, and as to the entire proceedings or as to only the proceedings after findings.

The power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons. As examples, a mistrial may be appropriate when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members or when members engage in prejudicial misconduct. Also, a mistrial is appropriate when the proceedings must be terminated because of a legal defect, such as a jurisdictional defect or a defective referral. See also R.C.M. 905(g) concerning the effect of rulings in one proceeding on later proceedings.

On motion for a mistrial or when it otherwise appears that grounds for a mistrial may exist, the military judge shall inquire into the views of the parties on the matter and then decide the matter as an interlocutory question.

A declaration of a mistrial shall have the effect of withdrawing the affected charges and specifications from the court-martial.

Upon declaration of a mistrial, the affected charges are returned to the convening authority, or special trial counsel as applicable, who may refer them anew or otherwise dispose of them. See R.C.M. 401- 407.

A declaration of a mistrial shall not prevent trial by another court-martial on the affected charges and specifications except when the mistrial was declared after jeopardy attached and before findings, and the declaration was:

An abuse of discretion and without the consent of the defense; or

The direct result of intentional prosecutorial misconduct designed to necessitate a mistrial.