ROBBINS v. STATE OF ARIZONA

IN THE SUPREME COURT OF THE STATE OF ARIZONA JIE Q. ROBBINS, Petitioner, v. STATE OF ARIZONA EX REL. RACHEL H. MITCHELL, MARICOPA COUNTY ATTORNEY, Respondent. ZACHARY ANDREW ROBBINS, Petitioner, v. STATE OF ARIZONA EX REL. RACHEL H. MITCHELL, MARICOPA COUNTY ATTORNEY, Respondent. No. CR-26-0026-PR Filed October 26, 2026 Special Action from the Superior Court in Maricopa County The Honorable Daniel G. Martin, Judge Nos. CR2019-150787-001; CR2019-150787-002 RELIEF DENIED; REMANDED Opinion of the Court of Appeals Division One 261 Ariz. 432 (App. 2025) VACATED  ROBBINS V. STATE Opinion of the Court COUNSEL: Rachel H. Mitchell, Maricopa County Attorney, Quinton S. Gregory (argued), Deputy County Attorney, Phoenix, Attorneys for the State of Arizona David E. Ahl (argued), Feldman|Royle|Ahl, PLLC, Phoenix, Attorneys for Jie Q. Robbins and Zachary Andrew Robbins Grace M. Guisewite, Arizona Attorneys for Criminal Justice, Phoenix, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice JUSTICE BEENE authored the Opinion of the Court, in which CHIEF JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICES BOLICK, MONTGOMERY, KING, and CRUZ joined. JUSTICE BEENE, Opinion of the Court: ¶1 Jie Robbins and Zachary Robbins moved for a mistrial during their joint criminal prosecution without conditioning their motions on a dismissal with prejudice. After the court granted the mistrial, but denied the dismissal, they attempted, unsuccessfully, to withdraw their mistrial motions. ¶2 The Double Jeopardy Clauses of the United States and Arizona Constitutions preclude the government from trying a criminal defendant twice for the same offense. We consider whether the double jeopardy prohibition applies here to bar retrial. We conclude that it does not. BACKGROUND ¶3 In 2019, Jie Robbins and Zachary Robbins (collectively, “Defendants”) were jointly indicted for money laundering, illegal control of an enterprise, and attempts to commit trafficking in stolen property. Before trial, the State sought to introduce records relating to Defendants’ 2  ROBBINS V. STATE Opinion of the Court PayPal and eBay accounts. Defendants moved to preclude the evidence as untimely disclosed, and the trial court granted the motion. ¶4 The matter proceeded to trial, where the State indicated it wished to play a portion of Jie’s interview with law enforcement but cautioned that the recording’s final seconds contained a reference to the precluded financial records. The State proposed stopping the recording just before that reference. The trial court agreed. ¶5 The State then played the recording for the jury. Before the anticipated reference to the precluded material, the detective mentioned “bank records” reflecting “millions of dollars worth of products.” Jie’s counsel objected, stating that “the bank records” were the precluded PayPal records. Jie’s counsel then moved for a mistrial. ¶6 The trial court excused the jury and heard argument on the motion. Jie’s counsel reiterated his request for a mistrial and additionally asked the court to dismiss the case with prejudice. He argued there was no way to “undo what was done” or otherwise “effectively combat” the jury’s exposure to the precluded evidence. Zachary’s counsel echoed his colleague’s “sentiment” and likewise requested dismissal with prejudice, insisting the error could not be corrected because “[y]ou can’t un-ring millions of dollars in sales.” In response, the State proposed two alternatives: Defendants could introduce contrary evidence to rebut the jury’s exposure to the precluded evidence, or the State could ask the detective whether he had exaggerated or used “a ruse” when discussing the records. ¶7 The trial court considered the State’s proposals but expressed skepticism that either would cure the harm. Jie’s counsel continued to press his position, reiterating that the jury could not disregard what it had heard. ¶8 The court granted a mistrial but denied the motion to dismiss with prejudice. It found manifest necessity for a mistrial, concluding that it was “highly probable” the reference to the precluded evidence would infect the jury’s deliberations and render a fair trial impossible. The court also found that dismissal with prejudice was unwarranted, concluding the State’s conduct was neither intentional nor in bad faith. 3  ROBBINS V. STATE Opinion of the Court ¶9 The trial court then invited the parties to make any additional record they deemed necessary. Each Defendant’s counsel indicated that their clients might prefer to continue with the proceeding if dismissal with prejudice was unavailable and attempted to withdraw their mistrial requests. To this, the court responded, “you asked for [a mistrial], I considered it, I granted it. That’s done.” Moreover, given its finding of manifest necessity, the court asserted that there was “no turning back.” ¶10 Defendants sought special action review from the court of appeals, arguing that a retrial would subject them to double jeopardy. See Robbins v. State ex rel. Mitchell, 261 Ariz. 432, 436 ¶ 1 (App. 2025). The court accepted jurisdiction and granted relief but affirmed the trial court’s determination that dismissal with prejudice was unwarranted because the prosecutor did not engage in intentional misconduct. Id. at 436 ¶ 1, 437–38 ¶ 19. The court of appeals, however, vacated the trial court’s order granting a mistrial, id. at 442 ¶ 42, concluding that a retrial would violate the Double Jeopardy Clause, see id. at 441 ¶ 40. ¶11 The court further observed that double jeopardy does not bar a retrial where a defendant has consented to a mistrial. See id. at 438 ¶ 22. It noted, however, that “Arizona courts have yet to address whether requesting a mistrial but then revoking that request after the court grants it but before the jury is dismissed constitutes consent to a mistrial.” Id. ¶ 23. Because Arizona law did not resolve that question, the court looked to Weston v. Kernan, 50 F.3d 633, 637 (9th Cir. 1995). See Robbins, 261 Ariz. at 438–39 ¶¶ 24–26. There, the Ninth Circuit held that a defendant who orally requested a mistrial but “later filed a written motion clarifying that he sought only a mistrial with prejudice” did not consent to a mistrial without prejudice. Id. ¶ 26. ¶12 The court of appeals found this case analogous to Weston, concluding that Jie’s counsel’s request for a mistrial was ambiguous given his concurrent request for dismissal with prejudice. Id. at 439 ¶ 27. The court reasoned that Jie’s counsel clarified his initial request after the mistrial ruling, but before the jury was dismissed, indicating that he sought only a mistrial with prejudice. Id. at 439–40 ¶¶ 27, 31. Thus, the court determined that when the trial court dismissed the jury, it effectuated a mistrial without Jie’s consent. Id. at 439 ¶ 30. As to Zachary’s counsel, the court similarly found his position before the mistrial was granted “at most” ambiguous. 4  ROBBINS V. STATE Opinion of the Court Id. at 439–40 ¶ 31. Because Zachary’s counsel insisted, before the jury was dismissed, that he sought only dismissal with prejudice, the court concluded that Zachary likewise did not consent to a mistrial without prejudice. Id. ¶13 The court of appeals next concluded that the trial court abused its discretion because it declared a mistrial without manifest necessity. Id. at 440–41 ¶¶ 33, 40. Specifically, the court found error in the trial court’s refusal to “consider the defendants’ interests in proceeding with the trial” and its conclusion that “reversal on appeal was not certain if the trial had proceeded to a guilty verdict.” Id. at 440 ¶ 33. Accordingly, the court of appeals vacated the trial court’s order declaring a mistrial without prejudice and instructed it to dismiss the charges with prejudice. Id. at 442 ¶ 42. ¶14 We granted review to decide two recurring questions of statewide importance: (1) whether a defendant who moves for a mistrial and then revokes or clarifies that request after the trial court has ruled thereby withdraws consent to the mistrial; and (2) what framework governs appellate review of a trial court’s finding of manifest necessity for a mistrial. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution. DISCUSSION ¶15 Whether double jeopardy bars retrial is a question of law that we review de novo. State v. Moody, 208 Ariz. 424, 437 ¶ 18 (2004). We review a trial court’s decision to declare a mistrial, however, for an abuse of discretion. State v. Gallardo, 225 Ariz. 560, 567 ¶ 26 (2010). ¶16 We interpret the Double Jeopardy Clauses of the United States and Arizona Constitutions as affording the same protections to criminal defendants and therefore conduct a unified analysis under both Constitutions. 1 See State v. Eagle, 196 Ariz. 188, 190 ¶ 5 (2000). The Double Jeopardy Clause generally does not bar retrial when a criminal defendant 1 The Double Jeopardy Clauses of the United States and Arizona Constitutions are virtually identical, and the parties did not argue that they should be construed differently. See U.S. Const. amend. V; Ariz. Const. art. II, § 10. 5  ROBBINS V. STATE Opinion of the Court consents to a mistrial or when a mistrial is manifestly necessary. See United States v. Dinitz, 424 U.S. 600, 606–07 (1976); McLaughlin v. Fahringer, 150 Ariz. 274, 277 (1986); see also Pool v. Superior Court, 139 Ariz. 98, 108–09 (1984). Thus, the presence of either basis—consent or manifest necessity—is sufficient to permit retrial consistent with the Double Jeopardy Clause. Although the court of appeals erred in parts of its analysis, it correctly considered both consent and manifest necessity as independently sufficient grounds for retrial. We address each in turn. I. ¶17 Generally, a defendant’s motion for mistrial constitutes consent to a mistrial and therefore waives any subsequent double jeopardy claim. See McLaughlin, 150 Ariz. at 277. This general rule, however, does not apply when the defendant’s motion is provoked by prosecutorial or judicial conduct. Oregon v. Kennedy, 456 U.S. 667, 673–74 (1982). This exception is “limited to those cases in which the conduct [gives] rise to [a] successful motion for a mistrial.” Id. at 679. ¶18 Here, the trial court found, and the court of appeals affirmed, that the prosecutorial error prompting Defendants’ mistrial motion was not intentional. Robbins, 261 Ariz. at 437–38 ¶¶ 19–20. Nevertheless, the consent inquiry is complicated by Defendants’ objections after the trial court granted the mistrial. The court of appeals framed the issue in terms of timing, considering “whether requesting a mistrial but then revoking that request after the court grants it but before the jury is dismissed constitutes consent to a mistrial.” Id. at 438 ¶ 23. To resolve the question, the court looked to federal case law on consent to a mistrial and Arizona decisions presenting analogous circumstances. See id. at 438–39 ¶¶ 24–30. But the court misapplied that authority and, in doing so, adopted a rule unsupported by existing precedent. A. A defendant who does not clarify or withdraw a mistrial motion before a trial court’s ruling cannot later deny consent. ¶19 Federal case law addressing when a defendant may withdraw or condition consent to a mistrial motion is instructive here. In United States v. Crotwell, 896 F.2d 437, 438 (10th Cir. 1990), Crotwell joined his co-defendant’s mistrial motion. At a later hearing on the motion, however, Crotwell switched positions and explicitly opposed a mistrial. Id. 6  ROBBINS V. STATE Opinion of the Court Nonetheless, the trial court granted a mistrial as to both defendants. Id. The Tenth Circuit reversed, holding that Crotwell did not consent to a mistrial because he withdrew his request at the hearing. See id. at 439, 441. Thus, Crotwell supports the proposition that a defendant may revoke consent to a mistrial by withdrawing the motion before the trial court rules. ¶20 Weston addresses a related but narrower form of withdrawal. There, the defendant moved for a mistrial, but rather than rule immediately, the trial judge took the matter under advisement and adjourned for the day. Weston, 50 F.3d at 635. The next morning, the defendant filed a written intervening motion narrowing his request to two forms of relief: a mistrial with prejudice based on prosecutorial misconduct or curative jury instructions. Id. at 635–36. Despite the defendant’s motion, the trial court declared a mistrial without prejudice. Id. at 636. The Ninth Circuit determined the defendant did not consent because the written motion made it clear that the defendant “only desired a mistrial if jeopardy would attach.” Id. at 637. Weston, therefore, supports the proposition that a defendant may condition a mistrial motion on dismissal with prejudice, so long as that condition is made clear before the trial court rules. See Davis v. Brown, 664 N.E.2d 884, 886–87 (N.Y. 1996) (holding that a defendant may specifically limit the motion to a mistrial with prejudice, where counsel fixed that limitation before the court ruled). ¶21 Together, Crotwell and Weston establish that a defendant who seeks to withdraw or limit consent to a mistrial must do so before the trial court rules on the mistrial request. Once the trial court has ruled, however, a defendant’s consent to mistrial by his own motion or unambiguous joinder to one—once given and acted upon—cannot be undone. ¶22 Earnest v. Dorsey, 87 F.3d 1123 (10th Cir. 1996), applies this rule to facts closely resembling this case. In Earnest, the defendant twice moved for a mistrial and attempted to withdraw his motions only after the trial court granted a mistrial without prejudice. Id. at 1127–28. On those facts, the Tenth Circuit distinguished both Crotwell and Weston. Earnest, 97 F.3d at 1129. Unlike in Crotwell, the defendant in Earnest “did not attempt to withdraw the motions [for mistrial] before they were granted.” Id. at 1129. And unlike in Weston, the defendant did not “make an intervening motion which could fairly be seen as an attempt to clarify, or withdraw and replace, his open-ended mistrial motions.” Id. The court also rejected the 7  ROBBINS V. STATE Opinion of the Court argument that the defendant could excuse his failure to timely object by claiming he had been misled into believing the trial court had decided against granting his mistrial motions. Id. Accordingly, the court concluded the defendant could not credibly deny that he had consented to the mistrial. See id. ¶23 Earnest, together with Crotwell and Weston, confirms the rule that governs this case: a defendant who does not withdraw or clarify a motion for a mistrial before the trial court rules may not later disclaim consent. This rule sensibly places the onus on the defendant to act and to do so timely. By moving for a mistrial, the defendant invokes what this Court has called “an extraordinary remedy.” State v. Urrea, 244 Ariz. 443, 446 ¶ 15 (2018) (quoting State v. Payne, 233 Ariz. 484, 504 ¶ 61 (2013)). Timely action allows the trial court to consider the defendant’s position before ruling—a post-ruling disclaimer does not. ¶24 Here, Jie’s counsel’s motion for a mistrial was unconditional. He first stated: “I do need to ask for a mistrial at this point . . . . I’m going to ask for a mistrial based on the State’s conduct just now.” After the trial judge excused the jury, Jie’s counsel added: “I asked for a mistrial. I’m asking that, additionally, the Court to dismiss this case now with prejudice.” (Emphasis added.) This second statement, however, did not clarify that Jie’s counsel conditioned the mistrial motion on dismissal with prejudice. Rather, the word “additionally” most naturally indicates that Jie’s counsel sought dismissal with prejudice as separate relief. After all, a mistrial and dismissal with prejudice are distinct forms of relief requiring different analyses. Compare Ariz. R. Crim. P. 16.4(d) (stating that dismissal is without prejudice “unless the court finds that the interests of justice require that the dismissal to be with prejudice”), and In re Arnulfo G., 205 Ariz. 389, 391 ¶ 9 (App. 2003) (identifying prejudice to the defendant’s ability to defend against charges as the most important factor in determining whether dismissal with prejudice is warranted), with State v. Miller, 234 Ariz. 31, 40 ¶ 25 (2013) (explaining that mistrial is an extraordinary remedy and courts consider whether the jury heard improper evidence and its likely influence). Accordingly, the trial court made two separate rulings and addressed each issue under the proper framework. See supra ¶ 8. ¶25 Zachary’s counsel then expressed agreement with Jie’s counsel. The first thing Zachary’s counsel stated, immediately after Jie’s 8  ROBBINS V. STATE Opinion of the Court counsel requested a mistrial and dismissal with prejudice, was: “Yes, Judge. I would agree with and join in [counsel]’s sentiment, Judge.” From this statement, we conclude Zachary’s counsel joined in both motions. A defendant can part ways with his co-defendant and request different relief, but that request must be explicitly stated to the trial court—which did not occur here. Cf. United States v. Huang, 960 F.2d 1128, 1133–34 (2d Cir. 1992) (concluding that two defendants in a group prosecution did not consent to a mistrial because they explicitly broke from and objected to their co-defendants’ unconditional mistrial motion). B. Once the trial court orders a mistrial, a defendant’s post-ruling objections or conduct cannot show that earlier requests were conditional or ambiguous. ¶26 The court of appeals concluded that Defendants’ requests were ambiguous: Jie’s request could be understood as seeking only a mistrial with prejudice, while Zachary’s could be understood as seeking only dismissal with prejudice. See Robbins, 261 Ariz. at 439 ¶¶ 27, 31. As discussed above, we are not persuaded that Defendants’ requests were ambiguous because, read naturally, they show Defendants sought a mistrial without conditioning it on dismissal with prejudice. Even if the requests could be read as the court of appeals suggests, Defendants created any ambiguity and could have resolved it before the trial court ruled. Because they did not, Crotwell, Weston, and Earnest foreclose them from now disclaiming consent. ¶27 This framework also forecloses reliance on Defendants’ statements made after the trial court granted the mistrial to resolve any ambiguity that may have existed beforehand. The court of appeals concluded otherwise, but the Arizona cases it referenced do not support that conclusion. See State v. Henderson, 116 Ariz. 310, 314 (App. 1977); State v. Dickinson, 242 Ariz. 120, 124 ¶ 15 (App. 2017). The court of appeals stated that “Arizona courts have considered defense counsel’s conduct after a mistrial is declared” and rejected the State’s argument that a defendant’s statements after a mistrial are irrelevant to consent. See Robbins, 261 Ariz. at 439 ¶ 29. ¶28 But neither Henderson nor Dickinson supports the court of appeals’ position. In Henderson, the court determined that defense counsel’s actions leading up to the declaration of a mistrial, combined with counsel’s 9  ROBBINS V. STATE Opinion of the Court failure to object, indicated consent to a mistrial. 116 Ariz. at 314. The court further noted that the defendant then participated in a new trial, still without raising an objection. Id. Critically, the Henderson court relied on the defendant’s later conduct only to confirm a position the defendant had already established. Id. But Henderson never addressed whether later conduct could establish consent when the defendant’s earlier position as to the form of dismissal was not clearly articulated. ¶29 Dickinson likewise fails to support inferring consent from a defendant’s conduct after a mistrial is declared. There, the trial court declared a mistrial over the defendant’s objection. See Dickinson, 242 Ariz. at 122–23 ¶¶ 4–7. On appeal, the State argued that the defendant’s failure to move for dismissal with prejudice after the mistrial was declared implied his consent to the mistrial. Id. at 124 ¶ 15. The Dickinson court disagreed, holding that “counsel’s failure to do something after the mistrial was granted did not revoke his prior objection to the mistrial.” Id. Thus, Dickinson stands for the narrow point that a defendant’s later inaction cannot undo an earlier, clearly made objection. ¶30 Here, Defendants did not withdraw or clarify their requests for a mistrial before the trial court ruled. Although Defendants objected after the trial court’s ruling, those later objections cannot be used to show that their earlier requests were conditional or ambiguous. We decline to adopt a contrary rule, as doing so would encourage ambiguity in mistrial motions and inject gamesmanship and inefficiency into criminal proceedings. II. ¶31 Even if Defendants did not consent to a mistrial, the trial court appropriately ordered one due to its finding of manifest necessity. See McLaughlin, 150 Ariz. at 277. Here, the trial court found that a mistrial was manifestly necessary because the jury was exposed to inadmissible, prejudicial evidence that undermined an impartial verdict. The court of appeals disagreed and vacated the mistrial order. Robbins, 261 Ariz. at 441–42 ¶¶ 40–42. In reaching its conclusion, however, the court of appeals committed three errors: (1) it treated certainty of reversal on appeal as the sole basis for a finding of manifest necessity; (2) it improperly engaged in fundamental error analysis on an insufficient record; and (3) it misapplied the “primary control” doctrine. 10  ROBBINS V. STATE Opinion of the Court A. Certainty of reversal is not the only ground for a finding of manifest necessity. ¶32 This Court first articulated Arizona’s manifest necessity standard in State v. Madison, 114 Ariz. 221, 223–24 (1977), drawing on the standard set forth by the United States Supreme Court in Illinois v. Somerville, 410 U.S. 458, 463–64 (1973). ¶33 In Madison, this Court recognized that “the trial court is vested with authority to declare a mistrial” over a defendant’s objection. 114 Ariz. at 223. When a trial court exercises this authority, the Double Jeopardy Clause will not bar retrial so long as “there is a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated.” Id. (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)) (citation modified). Additionally, the trial court must always use “sound discretion” when determining whether a mistrial is necessary. Id.; Arizona v. Washington, 434 U.S. 497, 514 (1978) (“[R]eviewing courts have an obligation to satisfy themselves that . . . the trial judge exercised ‘sound discretion’ in declaring a mistrial.”). The trial court “properly exercises [its] discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict . . . would have to be reversed on appeal due to an obvious procedural error in the trial.” Madison, 114 Ariz. at 224 (emphasis added) (quoting Somerville, 410 U.S. at 464). ¶34 Madison sets forth a two-pronged test for manifest necessity that is satisfied if either prong is met: (1) automatic reversal on appeal, or (2) the inability to reach an impartial verdict. See id. Madison focused primarily on automatic reversal as a basis to declare a mistrial. See id. at 224–25. There, this Court acknowledged that if an error will inevitably lead to reversal, “it would not serve ‘the ends of public justice’ to require that the Government proceed with its proof.” Id. at 224 (quoting Somerville, 410 U.S. at 464). Because a verdict would certainly have been reversed on appeal, this Court determined that the trial court rightly concluded a mistrial was manifestly necessary. Id. ¶35 In State v. Aguirre, 260 Ariz. 549, 556–57 ¶¶ 37–39, 43 (App. 2025), the court of appeals analyzed both prongs of the Madison test. There, the court considered whether the trial court’s references to improper testimony made a mistrial manifestly necessary. Id. at 556 ¶¶ 38–39. First, 11  ROBBINS V. STATE Opinion of the Court the court determined that “[o]nce the [trial] court vouched for the State’s evidence,” reversal on appeal became inevitable. Id. ¶ 39. Second, the court addressed the impartial-verdict prong and concluded that the trial court’s “imprimatur on the State’s evidence” made reaching an “impartial verdict impossible.” Id. at 557 ¶ 43. ¶36 In this case, the court of appeals, relying on Madison and Aguirre, articulated the manifest necessity standard as follows: “[A] court abuses its discretion by granting a mistrial without the defendant’s consent while failing to consider the defendant’s interest in proceeding with trial unless proceeding with trial ‘would make reversal on appeal a certainty.’” Robbins, 261 Ariz. at 440 ¶ 33 (citation modified). Thus, the court of appeals treated certain reversal as the only justification for a trial court to find a mistrial manifestly necessary. But the Madison test is disjunctive. By eliding the impartial-verdict prong, the court of appeals departed from the principles set forth in Madison. This error is especially significant because the trial court’s manifest necessity finding rested on the jury’s inability to reach an impartial verdict—the very prong the court of appeals failed to address. B. The court of appeals lacked an adequate record to apply fundamental error review. ¶37 The court of appeals’ flawed analysis of manifest necessity was not limited to the impartial-verdict prong. In addition, the court erred by analyzing the certain-reversal prong under a fundamental error analysis on an insufficient record. ¶38 The court of appeals concluded that “[r]eversal on appeal was not a certainty had the trial continued.” Robbins, 261 Ariz. at 441 ¶ 37. It also stated that “[h]ad the trial continued at the defendants’ request, they would have waived any appellate challenge—outside of fundamental error—to the State playing the recording in question for the jury.” Id. ¶ 38. The court then identified the circumstances when fundamental error analysis applies: “(1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial.” Id. (quoting State v. Escalante, 245 Ariz. 135, 142 ¶ 21 (2018)). Applying fundamental error review to the facts in this case, the court concluded that a single, accidental reference to precluded evidence was unlikely to 12  ROBBINS V. STATE Opinion of the Court constitute fundamental error, and reversal on appeal therefore was not certain. Id. ¶39 Fundamental error had no place in the court of appeals’ analysis. In State v. Gendron, 168 Ariz. 153, 155 (1991), this Court cautioned appellate courts not to apply fundamental error review “unless its analysis of the entire record permits it to set forth reasons clearly demonstrating that the case falls within our definition of fundamental error.” In this special action, the court of appeals had only one pretrial transcript and transcripts from only three days of an eight-day trial. On that limited record, the court could not have known the full effect of the precluded evidence and therefore had no sound basis for invoking fundamental error review. C. The primary control doctrine does not permit Defendants’ belated complaints of harm to undermine the trial court’s exercise of discretion. ¶40 The court of appeals concluded that the trial court failed to exercise sound discretion in determining manifest necessity. See Robbins, 261 Ariz. at 440 ¶ 33. It reasoned that the trial court “refused to consider the defendants’ interests in proceeding with the trial” by declining to revisit its mistrial ruling in light of Defendants’ objection. Id. ¶¶ 33–34. In support of this reasoning, the court of appeals referenced Jones v. Kiger, 194 Ariz. 523, 526 ¶ 9 (App. 1999), which states that a trial court considering a request for a mistrial “must recognize that the defendant . . . retains primary control over the course to be followed.” Robbins, 261 Ariz. at 440 ¶ 36. The primary control doctrine applied in Kiger originates in Dinitz. See Kiger, 194 Ariz. at 526 ¶ 9; Dinitz, 424 U.S. at 609. ¶41 Dinitz recognized that a defendant’s motion for a mistrial “is ordinarily assumed to remove any barrier to reprosecution, even if . . . necessitated by prosecutorial or judicial error.” 424 U.S. at 607. Faced with such an error, a defendant must choose between two courses of action. A defendant may go forward with “the first jury and, perhaps, end the dispute then and there with an acquittal.” Id. at 608 (quoting United States v. Jorn, 400 U.S. 470, 484 (1971)). Alternatively, a defendant may wish to abandon the proceeding, having concluded that “continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution.” Id. The Court explained that when a defendant moves for a mistrial under such 13  ROBBINS V. STATE Opinion of the Court circumstances, the “request has objectives not unlike the interests served by the Double Jeopardy Clause”; that is, “the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions.” Id. ¶42 The mistrial in Dinitz arose after the trial court excluded the defendant’s attorney from the courtroom for misconduct during opening statements, prompting the defendant to move for a mistrial. Id. at 602–05. The appellate court disregarded the defendant’s mistrial request, treated the mistrial as if the trial court had declared it over his objection, and held retrial was barred because no manifest necessity required the attorney’s exclusion. Id. at 605. The United States Supreme Court determined that this approach was improper because it would require “trial judges to reject the most meritorious mistrial motion in the absence of manifest necessity.” Id. at 610. Accordingly, the Court reversed and held that the Double Jeopardy Clause did not bar retrial. See id. at 611–12. ¶43 Dinitz’s primary control doctrine permits a defendant harmed by a prosecutorial or judicial error to move for a mistrial and still be retried, even absent a finding of manifest necessity. See id. at 607. But this permission is not absolute. The Double Jeopardy Clause bars retrial where governmental action was intended to provoke the defendant’s request for a mistrial. Id. at 611. Such action includes bad-faith conduct by the judge or prosecutor that harasses the defendant or affords the state a more favorable opportunity to convict. See id. ¶44 The primary control doctrine applies with equal force when a defendant objects to a mistrial rather than requests one. A defendant may object when the trial court declares a mistrial sua sponte. See Kiger, 194 Ariz. at 525–26 ¶¶ 5, 9; Dickinson, 242 Ariz. at 122 ¶ 1; McLaughlin, 150 Ariz. at 275. Or a defendant may object when the state moves for a mistrial. See State v. Woods, 237 Ariz. 214, 218 ¶¶ 11–12 (App. 2015). In either circumstance, the doctrine protects a defendant from being forced into a mistrial that the defendant did not request. ¶45 Here, the court of appeals invoked the primary control doctrine to undermine the trial court’s manifest necessity finding. Neither Dinitz nor Kiger—the Arizona case on which the court of appeals referenced—supports using a defendant’s post-ruling objections to undermine a trial court’s manifest necessity finding. See Robbins, 261 Ariz. 14  ROBBINS V. STATE Opinion of the Court at 440 ¶ 36. Fundamentally, the doctrine requires a trial court considering a mistrial to give credence to a defendant’s preference, whether expressed through a request for a mistrial or an objection to one. The doctrine does not, however, permit such objections to undermine the trial court’s exercise of discretion. Were it otherwise, virtually every declaration of a mistrial would be vulnerable to attack after the fact because a defendant could always identify some resulting harm the trial court failed to consider. III. ¶46 We now consider whether the court of appeals applied the correct standard of review to the trial court’s manifest necessity finding. The court cited Dickinson for the proposition that courts use a sliding scale of deference when reviewing for manifest necessity. See Robbins, 261 Ariz. at 440 ¶ 32. The sliding-scale standard that Dickinson applied—ranging from “great deference” to “strictest scrutiny”—has its roots in Washington. See Dickinson, 242 Ariz. at 124 ¶ 18 (quoting Washington, 434 U.S. at 508, 510). Dickinson provides that courts apply the “strictest scrutiny when the basis for a mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused.” Id. (quoting Washington, 434 U.S. at 508) (citation modified). Conversely, when a mistrial results from conduct by the defendant or defense counsel, or from a jury’s inability to reach a verdict, reviewing courts afford “great deference” to the trial court’s decision. Id. (citing Washington, 434 U.S. at 509–10). ¶47 Washington’s spectrum of deference applies to mistrials declared without the defendant’s consent. See 434 U.S. at 508. As noted above, we conclude Defendants did in fact consent to the mistrial, rendering Washington’s framework inapplicable. See supra ¶ 30. Even if Defendants had not consented, the standard of review would not change the outcome. ¶48 Strictest scrutiny exists to prevent prosecutors from engineering a mistrial “to harass or to achieve a tactical advantage over the accused.” Washington, 434 U.S. at 508. Dickinson did not involve prosecutorial misconduct of that kind; the disclosure prompting the mistrial came from a witness, and the court of appeals expressly assumed the prosecutor had not acted improperly. 242 Ariz. at 122 ¶¶ 3–4, 125 ¶ 19. 15  ROBBINS V. STATE Opinion of the Court Even so, because the defendant in Dickinson indicated his preference to proceed with the existing jury before the trial court declared a mistrial, and because neither he nor his counsel had contributed to the need for one, the court afforded the trial court’s finding less deference than it would have in a case involving jury deadlock or defense misconduct. Id. at 125 ¶¶ 19–20. Dickinson thus illustrates that a mistrial may warrant reduced deference even without prosecutorial misconduct, so long as the defendant neither caused nor consented to it. ¶49 We do not read Washington as requiring strictest scrutiny review when a prosecutor’s unintentional error leads a defendant to move for a mistrial—as occurred here—because that reading would be in tension with Dinitz. As discussed above, Dinitz instructs that when a defendant harmed by prosecutorial error moves for a mistrial, the absence of manifest necessity will not bar retrial, provided the state did not commit the error with the intent to provoke the defendant’s mistrial request. See supra ¶ 43. A rule requiring heightened review of a manifest necessity finding based on the same unintentional error cannot be reconciled with that principle. The court of appeals therefore erred in applying strictest scrutiny to the trial court’s finding. IV. ¶50 Having addressed the governing legal standards, we now assess the trial court’s finding of manifest necessity as an alternative basis for concluding that double jeopardy does not bar retrial. The record before us confirms that the trial court properly found manifest necessity for a mistrial because it considered Defendants’ arguments and possible alternatives at the appropriate juncture—before declaring a mistrial. Moreover, our review of the trial court’s finding is deferential, asking whether it exercised “sound discretion” in declaring the mistrial. See Washington, 434 U.S. at 511, 514. ¶51 The trial court found it “highly probable” that exposure to the precluded evidence would “influence the jury’s decision-making process.” This finding implicates Madison’s impartial-verdict prong because the trial court concluded that the jury could not reach an impartial verdict after hearing precluded evidence it was unlikely to disregard. The statement in the recording came from a detective and referenced “millions of dollars worth of products.” Because Defendants were accused of buying and 16  ROBBINS V. STATE Opinion of the Court selling stolen goods, the reference was highly inculpatory and bore directly on a contested issue. ¶52 Defendants’ contemporaneous reaction to the error confirms the trial court’s assessment of its effect. Zachary’s counsel highlighted that the detective referred to precluded evidence that “goes to specific counts in this case of money laundering in the first degree, illegal control of an enterprise.” Each Defendants’ counsel, moreover, argued emphatically that the harm was irreparable. Jie’s counsel in