dissenting:
The Chief Justice, in denying the State’s belated stay application filed in August, admonished our court in language whose import is unmistakable, that under Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), a trial court’s determination of manifest necessity is never entitled to greater deference than where, as in this case, “the judgment is based on an evaluation of such factors as the admissibility of evidence, any prejudice caused by the introduction of such evidence, and the trial court’s familiarity with the jurors.” Foster v. Gilliam, — U.S.-,-, 116 S.Ct. 1, 2, 132 L.Ed.2d 883 (1995) (Rehnquist, Circuit Justice). This admonition, of course, was merely a reaffirmation of Justice Stevens’ observation on behalf of the full Court in Arizona, 434 U.S. at 513-14 & n. 33, 98 S.Ct. at 834 & n. 33, 54 L.Ed.2d 717 (1978) (quoting Wade v. Hunter, 336 U.S. 684, 687, 69 S.Ct. 834, 836, 93 L.Ed. 974 (1949) (emphasis added)), that,
[tjhere are compelling institutional considerations militating in favor of appellate deference to the trial judge’s evaluation of the significance of possible juror bias. He has seen and heard the jurors during their voir dire examination. He is the judge most familiar with the evidence and the background of the case on trial. He has listened to the tone of the argument as it was delivered and has observed the apparent reaction of the jurors. In short, he is far more ‘conversant with the factors relevant to the determination’ than any reviewing court possibly can be.
These considerations must be at least as weighty where a federal court, in considering a state prisoner’s collateral challenge to his conviction on the ground that it violated the Double Jeopardy Clause, reviews the determination of a state trial judge as to juror bias.
See Foster v. Gilliam, — U.S. at-, 116 S.Ct. at 2 (citing Arizona, 434 U.S. at 513-14, 98 S.Ct. at 834).1 In confident disregard of the Chief Justice and the Court — indeed, without even a mention of the Chief Justice’s admonition — the majority today completes the wholesale substitution of its judgment for that of the state trial judge, on what the Chief Justice pointedly explained is the quintessential discretionary matter of whether the jury was potentially prejudiced by viewing the unadmitted crime scene photographs placed before it by defense counsel.
I.
The majority, as an appellate court in habeas, has literally sat down with some 26 individual photographs of the crime scene, compared them one with another, and without any familiarity with the evidence in the case, any understanding of the jurors, or any knowledge of either the prosecutorial or defense trial strategies, found as a matter of fact that the unadmitted photographs seen by the jury were not unduly prejudicial. This, despite a contrary finding by both the state trial judge, who knew the jury and the evidence, and the federal district court (before it was instructed by the en banc court to find otherwise),2 and despite the express and *916repeated concession of prejudice even by defense counsel. The extent, to which the majority has completely usurped the role of the state trial court, see Arizona, 434 U.S. at 513-14, 98 S.Ct. at 834, is apparent throughout its opinion, but perhaps is illustrated best in the following passages, which constitute the essential reasoning underlying its finding that no prejudice arose by virtue of the jury having seen the unadmitted crime scene photographs:
The photographs referred to as Set 2 included Exhibits 8, 12, 13, 14, and 16. The photographs referred to as Set 1 — Exhibits 9, 10, 11, 15, 17, 18, and 19 — were not offered into evidence.
A description of these photographs and a comparison of the photographs included in Set 1 vis-a-vis those in Set 2 is instructive. The photographs in Set 2, with the exception of Exhibit 16, are identical in every material aspect and show the area outside the Silvers’ mobile home. Each of these photographs was taken from near Highway 32, the public roadway in front of the Silvers’ mobile home, from the left-hand side of the mobile home and looking down the driveway toward it. The mobile home and the adjacent yard and driveway are shown in the background of these photographs, and all of them show the- same three pieces of yellow tape in the foreground — the closest two pieces are circular in shape, one to the left and one to the right, and one strand of yellow tape is behifid the two circular pieces and a few feet closer to the mobile home. The remaining photograph in Set 2, Exhibit 16, shows the same location, but reveals only the circular piece of tape to the right and one-half of the circular piece to the left.
Of the seven photographs in Set 1, four of them, Exhibits 10,17,18, and 19, are closeups of the three pieces of yellow tape: Exhibit 10 shows a close-up of the circular piece of tape on the left of the photographs in Set 2; Exhibit 17 is a close-up of the two circular pieces of tape shown in photographs in Set 2; Exhibit 18 is a close-up of the strand of tape behind the two circles of yellow tape in the photographs in Set 2; and Exhibit 19 is a photograph of the circle of tape on the right in the photographs in Set 2. These photographs show red spots within or near the areas marked with the yellow tape more clearly than the photographs in Set 2. Exhibit 15 is virtually identical to those in Set 2, taken from the same camera angle and depicting all three pieces of yellow tape. The two remaining photographs in Set 1, Exhibits 9 and 11, reveal the same three pieces of tape, but were taken from approximately the opposite location from those in Set 2; in other words, they are taken from near the mobile home facing up the driveway and toward Highway 32. These latter two photographs depict more clearly the same tire tracks shown in the photographs in Set 2.
... [TJhere was no possibility that the jury could have been confused by seeing the photographs in Set 1 prior to having heard [Officer Counts’] testimony. Officer Counts had testified that yellow tape marked the three areas on the ground outside the Silvers’ mobile home where what appeared to be blood was located. In addition, he had testified that these areas were located to the left of the mobile home and just beside the roadway, and he had marked the location of these areas on an overlay of a diagram of the crime scene prepared by the prosecution. Further, he testified that all of the photographs (Sets 1 and 2) showed the same scene but from different angles. Given this testimony, it *917strains credibility to suggest that the Set 1 photographs could have misled the jury into believing that there were a greater number of areas where blood was located or that the blood was discovered in a location other than the one indicated by Officer Counts____
... [T]here is simply no rational argument that viewing the photographs in Set 1 somehow improperly biased the jury----
... [T]he photographs in Set 1 could not have adversely affected the impartiality of the jury; and in light of Officer Counts’ testimony, the Set 1 photographs did not present any realistic potential for juror confusion.
Ante at 887-89, 898-99, 902. From these passages, the substance and detail of which do not appear in any state or federal opinion other than ours, it is evident that the majority’s utter disregard of Arizona (and Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)), is no different from the Ninth Circuit’s disregard of United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), in United States v. Sanford, 536 F.2d 871 (9th Cir.), rerid per curiam, 429 U.S. 14, 97 S.Ct. 20, 50 L.Ed.2d 17 (1976). And the ultimate disposition of this matter should be no different. The majority’s error under Arizona and Younger is plain, and full review will reveal nothing more about the unadmitted photographs at issue and their potential to prejudice the jury than we know now. As in Arizona, the conclusion is inescapable— that only the trial court could possibly assess the potential impact of these photographs on the jury that sat in Newberry, South Carolina. Additionally, it would be difficult to imagine a case wherein the disruption to the state proceedings caused by a federal appellate court could be any greater.3
II.
There are only two assertions in the entire majority opinion that, if they were not demonstrably wrong, might at least suggest that the disposition of this case is not directly controlled by Arizona.4
*918A.
First,,the majority states repeatedly that the trial court acted “precipitately,” making no findings that would possibly support a mistrial:
At no point did the state trial judge indicate that double jeopardy concerns were implicated by the grant of a mistrial. And, neither [did] the state trial judge indicate[] that the photographs were in any way prejudicial to the prosecution or the defense.
The state trial judge did not make a finding of manifest necessity or a finding of prejudice. Indeed, he did not use the word “prejudice” during this proceeding. Further, the state trial judge gave no hint of what prejudice might possibly exist such that a reviewing court could conclude that prejudice resulted from the jury’s viewing the photographs in Set 1.
The state trial judge ... made no finding that the impartiality of the jury had been, or may have been, affected by viewing the photographs in dispute.
Ante at 889 & n. 6, 902-03. This assertion is possible only through artificially focusing upon the trial court’s colloquy with counsel when the mistrial was granted, to the complete exclusion of the trial court’s extensive explanation of the reasons it granted the mistrial, which appear in its subsequent opinion and order denying Defendants’ Motion to Dismiss. See J.A. at 35-41.5
In that opinion and order, which I include as an appendix because it reflects the seriousness and thoroughness with which the mistrial motion was addressed, the trial court explained what the majority concedes was the court’s reasoning at the time it granted the mistrial, see ante at 902 n. 25, that it had been “grave[ly]” concerned about the “prejudicial occurrence” of the jury having reviewed unadmitted photographs of the murder scene. Id. at 899-900. The court identified the problem that it had confronted when it learned of this occurrence, namely, that it could not foresee whether the photographs, even if ultimately offered into evidence, would have been admitted under Fed. R.Evid. 403. J.A. at 36.6 It then reminded the parties that the court had been so concerned that it had “brought[the dilemma] to the attention of the litigants for a hearing as to how best then to proceed,” and “allowed all counsel in th[e] matter ‘full opportunity to explain their positions’.” Id. at 903-04., The court outlined the steps that it had taken to ensure that the jury had in fact reviewed the unadmitted crime scene photographs, including interrogating the jury foreman and the court reporter in open court. Id. at 903-04. And it emphasized that it had considered, as an alternative to a mistrial, a curative instruction, but concluded that such an instruction “would simply highlight and compound the error already existent.” Id. at 904. As the court observed, “[t]his was not merely an opening statement by an adversary that could have been cured by any instruction of th[e] court.” Id. at 904-05.
The court then noted that, although an explicit finding of manifest necessity is not required under Arizona, in the court’s view an “implicit finding of manifest necessity existed]” in the court’s expression of grave concern over the “origin of the prejudice as well as the extent of the publication [of the unadmitted photographs] to the jury.” Id. at 904. Finally, the court pointed out that more than just “manifest necessity” had justified *919the mistrial, because to have granted the defendants’ motion to dismiss would have been to “reward” them for their own negligent action in allowing the photographs to be seen by the jury. Id. at 905. In language that captures perfectly the rationale underlying the “special respect” that the Supreme Court has said must be accorded the trial courts in determinations such as these, the court concluded by saying that it would not “second guess” what “it [had] observed, heard and felt at the time of its ... ruling.” Id. at 905-06.
The majority’s holding notwithstanding, ante at 900-01, this deliberate consideration by the trial court, which again, as the majority concedes, ante at 901-02 n. 25, mirrors the deliberate consideration by the trial court at the time the mistrial was granted, is not even arguably “precipitous,” “irrational,” or “irresponsible,” see Arizona, 434 U.S. at 514, 98 S.Ct. at 835.
B.
The majority’s second assertion is that the State’s only argument of prejudice is that the Set 1 photographs had not been formally admitted and properly authenticated. See ante at 897-99, 896-98 n. 19. Like its first assertion, this, too, is flatly wrong. The State does argue that the unadmitted photographs were not properly authenticated, but that is not its only, or even its principal, argument. The State has explained throughout these proceedings that the unadmitted photographs differed from the admitted photographs and prejudiced the State in two significant ways.7
First, the unadmitted photographs are the only close-ups of the scene and the only photographs from which it is possible to discern the presence of blood or a blood-like substance.8 And, as both parties concede, the presence or absence of blood at this precise location is central to the case, given the defenses of provocation and self-defense. The defense counsel candidly admitted that it was for this reason that the photographs were important to the defense. Second, the State has consistently maintained that the unadmitted photographs show more clearly than the admitted photographs, the tire tracks that are believed to have been made by Gilliam’s truck, thus confirming whether the truck was on or off decedent’s property at the time of the crime.
At oral argument before the panel on the original motion to stay the state trial, the State argued as follows:
THE STATE: When I look at the [admitted] photographs, I do not see the stain [that appears to be blood — the unadmitted photographs did show this stain].
THE STATE: The presence of the stains might be relevant to the ease because it would reveal the — who shot first and where they shot, to the extent that Mr. Gilliam was injured at the scene and shooting from the victim’s area. Where he was bleeding and where blood would be located and the amount of blood would be located *920would assist in making a determination whether Mr. Gilliam had a duty to retreat, to act in self-defense, join in the self-defense of Mr. Swain’s action. He may have been coming to his defense. And whether the ... victim was securing his property, whether he had the ability to defend his habitat at the time from intruders. Those are both factual questions that the jury may have been presented with____
THE STATE: ... You see the rust area ... in the [admitted] photographs, but the red spots [that appear to be blood] do not appear1 to show up in any of the other photographs from my study of the photographs.
Transcript of Oral Argument, July 15, 1995, at 9-10, 51.
Similarly, in its brief before the en banc court on the merits, the State argued,
[a] review of the photographs reveals the existence of various “red dots.” The Petitioners now concede that whether the blurs represented blood was a critical fact, although the testimony of Officer Counts was essentially that he lacked the knowledge or expertise to state that the “dots” were blood. Although the defense concedes that at the time of the trial it had not subjected the photographs to such a test, it still asserts that it was relevant as representing Gilliam’s blood. Under the evidence presented at the time of the trial, the location of Gilliam at the time of the shooting was in dispute with some witnesses placing him in the yard of the deceased and others placing him on the roadway. Similarly the questioned photographs showing tire tracks not represented in the admitted photographs touched uniquely (and possibly confusingly) on the location of [Gilliam’s] truck.
Appellants Br. at 34-35 (footnote omitted). And, at oral argument before the en banc court, the prosecution again explained the prejudice that resulted from the jury seeing the unadmitted photographs:
THE STATE: ... [Defense] [c]ounsel Price in the testimony before the State, in the habeas corpus hearing, testified that these photographs could lead to jury confusion. Betty Strom, the prosecutor, testified that they could lead to jury confusion because they reveal the red dots which are not revealed in the admitted photographs.
THE COURT: What is the taint now?
THE STATE: The taint was that the jury-got information that had never been revealed to them.
THE COURT: The photographs were little different, were they not?
THE STATE: Yes, sir. They were very different.
Transcript of Oral Argument, September 26, 1995.
If there were any doubt about the potential prejudice of the unadmitted photographs, defense counsels’ repeated, candid concessions lay it to rest; in fact, throughout these proceedings, the defense has quite articulately described the prejudice to the State. At the hearing before the federal district court, defense counsel testified as follows:
A. [Defense counsel] The question is what is useful about the unadmitted photographs which was helpful to the defense, is that it?
Q. [The State, cross-examining] Yes, sir.
A. [Defense counsel] ... [P]art of photo set one [the unadmitted photographs] is a close-up that shows a red substance that would appear to be blood.
Q. [The State] And it shows a number of spots, as you already conceded, that is not evident in any other photographs which were introduced; is that correct?
A. [Defense counsel] There are some red spots that are hard to see in admitted exhibit 12 of photo 2.... Clearly they are easier to see in the unadmitted number 10.
Q. [The State] If you didn’t know [that the blood] was there ... ?
A. [Defense counsel] It would be difficult to see the blood____
*921A. [Defense counsel] I spent a lot of time ■with these getting ready for this trial. It could be argued that a jury would be confused if we had both sets. It could be argued that they would be confused if they had only one set.
Q. [The State] Why would [unadmitted] defendant’s exhibit 9 be of use to the defense in this ease?
A. [Defense counsel] Well, it would show for the purposes of the defense that there were tire tracks and why weren’t they analyzed for purposes of argument.
A. [Defense counsel] [Unadmitted exhibit 15 would be relevant because] [i]t would depict the area of the driveway where the mud puddle is. There had been earlier testimony as to how close this truck had driven up to the trailer. We can see these two trees that become landmarks in the testimony in the development of the crime scene.
Q. [The State] Why would that have been useful in the defense in this case ... ? A. [Defense counsel] The state’s position was that the defendants had been on the property of the decedent and it was necessary to show exactly where the truck had parked. The way that was to be done was the blood that was coming from defendant Gilliam would be located in the area where he got in the truck.
A. [Defense counsel] ... [T]he location of the truck is relevant. My client was standing behind the truck. She got into the truck when the parties fled the scene.
Q. [The State] ... [Y]our statements about [unadmitted] exhibits 17, 18 and 19 are that they reveal the blood droppings that are not represented or evident in the other photographs; is that correct?
A. [Defense counsel] It shows them clearer and more precise than in the others.
A. [Defense counsel] There are some admitted photographs that it would be very difficult to see the red dots within the circle of the yellow tape, yes.
Q. [The State] Then you concede that the blood like substance, if it was able to be seen from any of the photographs was only able to be seen in the admitted photographs in one photograph; is that correct? A. [Defense counsel] On the copies that I am looking at, I have trouble finding it in other than one.
JA. at 324-34.
Likewise, at oral argument before the en banc court, defense counsel explained:
THE COURT: Then tell me how the introduction of those photographs were intended by you to influence the jury to acquit your defendants.
DEFENSE COUNSEL: Those photographs were to corroborate the testimony of [Officer Counts] when he came down here and drew on this diagram in front of the jury and showed them where the blood was found. That’s relevant as to where Mr. Gilliam was when he was shot.
THE COURT: Without the corroboration, your case was not as strong. The degree to which, we don’t need to decide. It was not as strong.
DEFENSE COUNSEL: Certainly, the corroboration strengthens our case.
THE COURT: And thereby prejudices to some extent the government’s case.
DEFENSE COUNSEL: If you’re using prejudice in the sense of does it support one side or the other.
THE COURT: Well, of course.
DEFENSE COUNSEL: Then ah evidence is prejudicial to either side and in that sense I would say “yes, it was prejudicial,” just as the photographs in sets two and three were. Just as all the evidence that the state introduced against us theoretically prejudiced our case.
Transcript of Oral Argument, September 26, 1995.
*922Indeed, in my view, no one examining the unadmitted Set 1 photographs and the admitted Set 2 photographs could fail to appreciate the enormous significance (or, at the very least, the enormous potential significance) of the Set 1 photographs, given that the precise location of Gilliam’s truck and of Gilliam himself when he was shot in the foot by the decedent are central to, if not dispositive of, the defendants’ guilt. As the defense concedes, the Set 1 photographs all but confirm the existence of tire tracks at the location, whereas it is difficult (if not impossible) to confirm from the Set 2 photographs that the same markings are in fact tire tracks. Most important, the Set 1 photographs all but confirm the presence of a significant amount of blood (or a blood-like substance) at the location depicted in the photographs, whereas it is virtually impossible to infer even the presence of blood, much less a large quantity of blood, from the Set 2 photographs. In sum, the Set 1 photographs are not “just” close-ups of the same area depicted in the Set 2 photographs, as the majority would have one believe; they are the only photographs that depict the information that both parties agree is absolutely critical to the case.
Even the federal district court that granted the writ of habeas corpus that we are now reviewing specifically found that, although the photographs were not “unfairly prejudicial,” they “may have been ‘prejudicial’ to the State in the sense that they may have supported the Defendants’ defenses of self-defense or provocation.” J.A. at 505. As that court explained when it initially denied the writ, and before we effectively directed it to hold otherwise,
it is now apparent that the disputed photographs were more important than might first appear. From the argument of counsel at the hearing, the court was able to determine that the murder victim in this case had himself fired shots at one of the Defendants shortly before or contemporaneously with the shot by which he was killed. Therefore, issues of provocation and self-defense are present in this case. One factor that is important in resolving these issues is whether one of the Defendants was on the decedent’s property or on the public roadway at the time he fired his weapon. The disputed photographs are close up photographs of the ground which show blood stains. Because of this, they could be used to more clearly document where the shooting occurred.
J.A. at 211; see also supra note 2.
Tellingly, even the majority must acknowledge the potential prejudice that inhered in the unadmitted photographs: “These photographs ... were relevant [and] material____ These photographs show red spots within the areas marked with the yellow tape more clearly than the photographs in Set 2____ [The Set 1] ... photographs [also] depict more clearly the same tire tracks shown in the photographs in Set 2.” Ante at 885-86, 887-88. Under Arizona, this concession of prejudice is all but dispositive. For Arizona did not turn, as the majority mistakenly believes, see ante at 894-95, 896-97, 898, on the fact that the improper argument was “highly prejudicial,” as the Court characterized it at one point, see 434 U.S. at 515, 98 S.Ct. at 835. Rather, Arizona turned on whether the error gave rise to “possible juror bias,” see id. at 512, 98 S.Ct. at 833-34; see also id. at 502 n. 10, 98 S.Ct. at 828 n. 10 (implying that “the probability of juror prejudicé” is the relevant inquiry, not the “certainty of prejudice”); id. at 509, 98 S.Ct. at 832 (“significant risk that a verdict may result from pressures”); id. at 511, 98 S.Ct. at 833 (“may have affected”) (“possible bias”) (“likelihood that the impartiality ... may have been affected”); id. at 512, 98 S.Ct. at 833-34 (“possibility of bias”) (“it is possible”) (“perhaps”) (“possibility of bias”) (“tends to frustrate”) (“create a risk”); id. at 513, 98 S.Ct. at 834 (“risk of bias”) (“possible juror bias”).
Because the majority concedes prejudice, and thus a fortiori the possibility of jury bias, the only way it can avoid the conclusion that the trial court unquestionably acted within its discretion is by holding (as it does) that the state trial judge acted “irrationally” in not attempting to cure that prejudice. Ante at 900-02. In order to so hold, the majority creates out of whole cloth a distinction of per se legal significance between prej*923udice and “unfair” or “undue” prejudice (which it presumably imports from Fed. R.Evid. 403), ante at 889-90, 892, 895-96, 896 n. 18, and then finds that the prejudice in this case was not “unfair” because the photographs, in its opinion, would have been admissible, ante at 885, 890-91, 895-99, 899-900, 900-02.9 Of course, whether or not, as a technical matter, the photographs would have been admissible or admitted, is ultimately irrelevant.10
The relevant question is not whether the photographs would have been admissible, but rather, whether it was an abuse of discretion for the state trial court to decline to formally consider their admission after they had already been seen by the jury. Most assuredly, it was not.
The trial court had at least four obvious and sound reasons for declining to attempt this cure. First, the court was confronted with the distinct possibility that the jury had already formed impressions, if not drawn conclusions, from the photographs — not about some ancillary issue of little consequence, but about the critical issues of the precise locations where defendant Gilliam was shot and where his truck was parked. Given this distinct possibility, it was reasonable to decide that subsequent foundation testimony (itself an oxymoron) could not correct those unguided impressions, any more than a curative instruction could. Second, for reasons that will never be known, the defense apparently had made the tactical decision not to introduce the Set 1 photographs during Officer Counts’ testimony, and the prosecution had no doubt relied upon that choice. Aware that the timing of the admission of evidence is critical to the force of that evidence, it was reasonable for the trial court to determine that it was an unacceptable alternative to require the admission of the photographs at a time when the defense had not intended to introduce them, and thereby to require the prosecution to respond to the photographs at a time when it would not otherwise have been required to respond. Third, it was reasonable for the trial court to conclude that recalling Officer Counts and considering the admission of the photographs after they had already been seen by the jury would only have highlighted their importance, increasing the potential for prejudice. J.A. at 36-37, 39-40, 93-94. But see ante at 900, 900-01 & n. 19, 902. And fourth, it was clearly within the trial court’s discretion to conclude that defense counsel’s unauthorized placement of these crime scene photographs before the jury, together with the earlier incident of possible defense misconduct, see discussion infra at 895-96 & n.14, had so far stripped the proceeding of any semblance of fairness that any attempted cure would have been meaningless.
For these reasons, the state trial court was no more required to attempt to cure the error by recalling Officer Counts and then *924ruling on the admissibility of the photographs (even though the majority might have done so if it were’ hearing the case), than the trial court in Arizona was required to give a curative instruction (even though other trial judges might have done so if they were hearing the case). 434 U.S. at 511, 98 S.Ct. at 833.
III.
Once the majority’s two misconceptions about the trial court and the prosecution are corrected, it is apparent that this ease is squarely controlled by Arizona and that the ultimate disposition of the case should be a straightforward, unexceptionable application of that decision; indeed, the ease for not disturbing the trial court is even stronger here.
In Arizona, there was no allegation of prosecutorial misconduct. Here, too, there was no such allegation, and in fact, the federal district court expressly found that there was no prosecutorial misconduct whatsoever, J.A. at 498, a fact that the majority ignores altogether.
In Arizona, the trial error was caused by defense counsel. 434 U.S. at 510, 98 S.Ct. at 832-33. Here, too, and also ignored by the majority, defense counsel caused the error— as the defense concedes and the state trial court expressly found. J.A. at 36, 89, 497.
In Arizona, the improper argument “may have affected the impartiality of the jury.” 434 U.S. at 511, 98 S.Ct. at 833 (emphasis added). Here, too, the unadmitted crime scene photographs at the very least “may have affected” the jury’s impartiality. See J.A. at 38.
In Arizona, the improper argument “create[d] a risk, often not present in the individual juror bias situation, that the entire panel may [have been] tainted.” 434 U.S. at 512, 98 S.Ct. at 834. Here, too, because the crime scene photographs were given to the entire jury, the risk was that the entire panel became biased by the photographs. J.A. at 38, 94.
In Arizona, the trial court heard argument from both sides before granting the mistrial. 434 U.S. at 515-16, 98 S.Ct. at 835. Here, too, the trial court “allowed all counsel in this matter ‘full opportunity to explain their positions.’ ”11 J.A. at 38.
In Arizona, the trial court considered a curative instruction, but rejected such an instruction as inadequate to cure the improper comment. 434 U.S. at 511, 514 n. 34, 98 S.Ct. at 833, 834 n. 34. Here, too, the trial court considered a curative instruction, but concluded that such an instruction could not cure the effect of the jury having seen the unadmitted photographs. J.A. at 38.
And in Arizona, the defendants did not “attempt to demonstrate specific prejudice from the mistrial ruling, other than the harm which always accompanies retrial.” 434 U.S. at 516 n. 35, 98 S.Ct. at 835 n. 35. Here, too, the only harm that the defendants allege is that “which always accompanies retrial.” See ante at 903.
In fact, the reasons for reversing the en banc court here (and affirming the state trial court’s judgment) are even more compelling than they were in Arizona.
In Arizona, the trial court failed to articulate the reasons for declaring the mistrial. 434 U.S. at 516-17, 98 S.Ct. at 836.12 Here, *925the trial court did articulate its reasons for declaring the mistrial. J.A. at 85-41, 93-94.
In Arizona, there was no explicit finding of manifest necessity. 434 U.S. at 516, 98 S.Ct. at 835-36. Here, the trial court found manifest necessity. J.A. at 39.13
In Arizona, the trial court made no explicit finding of prejudice. 434 U.S. at 517 n. 39, 98 S.Ct. at 836 n. 39. Here, the trial court made an express finding of prejudice. J.A. at 38, 39.
In Arizona, there is no suggestion that the defense acknowledged the prejudice to the government’s case. Here, the defense has consistently admitted that introduction of the photographs did prejudice the government’s case. See J.A. at 324-34; Transcript of Oral Argument, September 26, 1995.
In Arizona, the error was an improper opening statement. Here, as the trial judge recognized, the jury had “not merely [heard] an opening statement by an adversary that could have been cured by any instruction of this Court,” it “had seen and touched physical evidence not properly admitted.” J.A. at 39-40.
In Arizona, defense counsel expressly argued for a curative instruction by the trial court. 434 U.S. at 514 n. 34, 98 S.Ct. at 835 n. 34. Here, defense counsel never urged that a curative instruction be given, yet the trial court considered such an instruction sua sponte. J.A. at 87-94, 37-38.
Significantly, here, unlike in Arizona, there was evidence before the state trial court that permitted a conclusion that defense counsel was engaged in a pattern of misconduct during this very trial.14
*926And .finally, here, unlike in Arizona, the federal courts stopped an ongoing state murder trial — literally with a witness on the stand — on the basis of their assessment of the evidentiary significance of the crime scene photographs, in open defiance of the principles that lie at the core of Younger v. Harris.
That the state trial court in this case evidenced the grave concern that it did, J.A. at 36-40, 90-94, and in response, allowed counsel for both parties to argue their positions as to whether a mistrial should be granted, J.A. at 38-39, 90-91, 93, is probably alone sufficient to render the trial court’s grant of a mistrial an exercise of “sound discretion,” as it was for the Supreme Court in Arizona:
[E]vineing a concern for the possible double jeopardy consequences of an erroneous ruling, he gave both defense counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial. We are therefore persuaded by the record that the trial judge acted responsibly and deliberately____
434 U.S. at 515-16, 98 S.Ct. at 835 (emphasis added).
Given the deliberate, conscientious manner in which the court in this case determined to grant the mistrial — as evidenced by the attached detailed trial court opinion reciting the court’s contemporaneous reasoning— there can be no question that the state trial court’s judgment is entitled at least to the same “special respect” accorded the state trial court’s ruling in Arizona, which read in full:
Based upon defense counsel’s remarks in his opening statement concerning the Arizona Supreme Court opinion and its effect for the reasons for the new trial, the motion for mistrial will be granted.
Quoted in Arizona v. Washington, 546 F.2d 829, 831 (9th Cir.), rev’d, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); see also Joint Appendix, Arizona v. Washington, U.S. Supreme Court, No. 76-1168 at 271-72 (1977).
* * * * * *
Arizona was written precisely to prevent our trial courts, who are “far more ‘conversant with the factors relevant to the determination’ [of potential jury bias] than any reviewing court can possibly be,” 434 U.S. at 514, 98 S.Ct. at 834, from being second-guessed by appellate courts engaged in the kind of rank speculation that the majority engages in today. If Arizona means anything at all, it must mean that a federal appellate court in habeas should never find itself in the posture of comparing and contrasting individual crime scene photographs wrongfully placed before a jury by defense counsel and determining de novo whether those photographs might have been admitted and whether they might have somehow prejudiced the jury in a trial about which the appellate court knows little to nothing. As the majority so ironically, if not presciently, assures, “[i]f counsel were to air evidence that might tend to improperly bias the jury or adversely affect its impartiality, any reviewing court applying the teachings of Arizona v. Washington would conclude that the trial judge acted within his discretion in granting a mistrial.” Ante at 901.
Because, ápplying the teachings of Arizona, I believe that the majority is destined for reversal, if not summary reversal, I dissent.
*927Judges RUSSELL, WIDENER, WILKINSON, and NIEMEYER concur in this opinion.APPENDIX
STATE OF SOUTH CAROLINA COUNTY OF NEWBERRY THE COURT OF GENERAL SESSIONS EIGHTH JUDICIAL CIRCUIT
Case No.:
The State vs. James Swain, Wayland Gilliam, Jr. and Pamela Owings, Defendants.
AMENDED ORDER
This matter comes before me on the motion of attorneys for the three defendants captioned above, James Swain, Wayland Gilliam, Jr. and Pamela Owings. The Defendants have moved this Court pursuant to the prohibition against double jeopardy found in the Fifth Amendment to the United States Constitution and Article 1, Section 12, of the South Carolina Constitution, to dismiss the charges pressed against them in the General Sessions Court of Newberry County. All three defendants are charged with Murder and Lynching in the First Degree. Additionally, Defendant Swain, alone, is charged with Assault with Intent to Kill, and Defendant Gilliam, alone, is charged with Indecent Exposure. All of these indictments arise out of the same factual setting. Indictment 93-GS-36-70 charges Murder, Lynching and Assault with Intent to Kill and Indictment 93-GS-36-183 charges Indecent Exposure. This Court held a hearing on Tuesday, April 11, 1995, wherein counsel for the defendants and the state were present and argued their respective positions in this' matter.
It must be noted at the outset that the State moved for a mistrial only after this Court brought certain matters to the attention of the parties. More specifically, this Court observed that certain physical items, namely photographs of the murder scene, had been taken by the jury and reviewed by each of the jurors without these photographs being admitted into evidence. The Defendants’ argument notwithstanding, it is of no consequence whether the Defendants either inadvertently, intentionally or mistakenly allowed this activity to occur. The principle remains the same: Exhibits that had not been introduced into evidence were in fact given to the jury for their review without proper documentation and prior to being finally passed on by this Court before being admitted into evidence.
The South Carolina Supreme Court in State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991) adopted Federal Rule of Evidence 403 which provides “Although relevant, evidence may be excluded if its probative value is substantially outweighed by ... confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” This Court was never given the opportunity to make a determination pursuant to Rule 403 on the admissibility of the questioned photographs because of the actions of defense counsel. Counsel for one of the three defendants has acknowledged that it was possibly his action that allowed such an occurrence. “Now that was certainly sloppy housekeeping and I take responsibility for that, but that was certainly not a tactical move to put anything before the jury.” (Transcript at Page 41). In the same way that a Motion In Limine does not ultimately decide the admissibility of evidence because of changed circumstances occurring during a trial, State v. Flood [Floyd], 295 S.C. 518, 369 S.E.2d 842 (1988), this Court could not foresee if the questioned photographs would have been offered and, if offered, then admitted into evidence. Contrast the Court’s remarks on page 12 line 25 through page 13 line 4 with the Court’s comments on page 46 lines 6-9 of the Transcript “And I don’t know of anyway at this point in time, even if they were later offered and admitted, at this point in time I have no way of guessing that”.
This Court is under an obligation to provide a fair and just trial for both the defendants and for the state. (See Transcript at page 46). This Court was left with the dilemma as to how to proceed after it was brought to its attention that evidence had been published to the jury that had not been properly admitted. It concerned this Court *928to the extent that it was brought to the attention of the litigants for a hearing as to how best then to proceed.
The Defendants argue that this Court did not consider any other reasonable alternative except to grant the State’s Mistrial Motion after the publication to the jury of the questioned photographs. To the contrary, recognizing that the jury in this case had been empaneled for little over a day, the Court considered reasonable alternatives by calling out the jury foreman and inquiring with him in open court as to the extent of the publication of the questioned photographs. As noted on Transcript page 43 at line 9 the Court brought out the foreman of the jury, Mr. William C. Cunningham, and queried him as to what had been observed by himself as well as other members of the jury. Mr. Cunningham acknowledged that all the photographs had been circulated throughout the jury.
Mr. Cunningham: “Yes Sir, to my knowledge they all had.”
The Court: “All right, Sir. To your knowledge, all of them had as far as you know?”
Mr. Cunningham: ‘Tes Sir. As far as I know.”
The Court: “All right, Sir. That is what I needed to know. You can step back into the jury room.”
Transcript page 44 lines 3 through 7.
Further, the Court then inquired of the court reporter whether or not the Court’s understanding of the extent of the publicity was in fact accurate. (See Transcript at page 45). The court reporter confirmed by responding ‘Tes Sir. It was a big stack. Those were included in the group that were over there.” (Transcript page 45, lines 4-5). It was the Court’s feeling that because of the nature of the exhibits and the extent of the publication to the jury that no curative instruction could be issued. This Court’s concern about a curative instruction is implicitly reflected in the Transcript at page 46 lines 6-9. Unlike the Court in United States v. Sloan, 36 F.3d 386 (4th Cir.1994) a case cited by the defendants as supporting their position, this Court did consider the alternative of a curative instruction. It was this Court’s decision at the time, however, that a curative instruction would simply highlight and compound the error already existent.
The Court did not engage in any sua sponte determination of a mistrial, see State v. Myers, 61 N.C.App. 554, 301 S.E.2d 401 (1983) but rather, allowed all counsel in this matter “full opportunity to explain their positions”. (Transcript page 45, lines 9-11). It was of grave concern to this Court that this prejudicial occurrence had transpired and this Court wished to hear from each of defendants’ counsel as to their feelings before ruling on the Motion for a Mistrial. See Transcript pages 39-41. At no time did any counsel for the defendants ask for more opportunity to be heard or to review other legal precedent prior to this Court’s ruling.
“When a mistrial is declared over a criminal defendant’s objection, retrial is permitted only when ‘there is a manifest necessity for the act or the ends of public justice would otherwise be defeated.’” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824) as cited in United States v. Sloan, supra . The Sloan court noted that this bedrock principle has been reiterated and followed consistently in the intervening 171 years. See, e.g., Arizona v. Washington, 434 U.S. 497 [98 S.Ct. 824, 54 L.Ed.2d 717], Illinois v. Somerville, 410 U.S. 458 [93 S.Ct. 1066, 35 L.Ed.2d 425] (1973) and United States v. Jorn, 400 U.S. 470 [91 S.Ct. 547, 27 L.Ed.2d 543] (1971). As noted by the Somerville court, a trial judge has “broad discretion” in determining whether manifest necessity requires declaration of a mistrial. While this Court “need not make an explicit finding of manifest necessity” Sloan, id. at 394, citing Arizona v. Washington, id., the transcript adequately reflects that the court was so concerned with the origin of the prejudice as well as the extent of the publication to the jury that an implicit finding of manifest necessity exists. A “manifest necessity” standard cannot be “applied mechanically” Jam, 400 U.S. at 487 [91 S.Ct. at 558] and this Court declines to conclude that it acted “irrationally or irresponsibly”, Arizona v. Washington, 434 U.S. at 514 [98 S.Ct. at 835], in making its decision to grant a mistrial. *929“Each case must turn on its facts”, United States v. Sartori, 730 F.2d 973, 976 (4th Cir.1984).
The twelve jurors had seen and touched physical evidence not properly admitted. While the defendants claim the photographs would have been introduced later, this is speculative and conjectural. This was not merely an opening statement by an adversary that could have been cured by any instruction of this Court as was the ease in United States v. Sloan, id. Moreover, Defendants have not produced a case where a mistrial was declared improvidently granted when inadmissible evidence by the way of photographs had been published to the jury.
Moreover, it is more than “manifest necessity” which requires the granting of a mistrial in this case. The public interest in and its right to a fair trial that is designed to end in a just judgment further requires that this Court deny the Defendants’ Motion to Dismiss under the Fifth Amendment. It would be unfair, unjust and improper under these circumstances, which may have come about as a direct result of actions of defense counsel, to reward the defendants by granting their Motion to Dismiss. “The interest of the public in seeing that a criminal prosecution proceed to verdict, either of acquittal or conviction, need not be forsaken by the formulation or application of rigid rules that necessarily preclude the vindication of that interest” Illinois v. Somerville, 410 U.S. at 463, 93 S.C[t]. at 1070. The Court’s broad discretion was exercised under the facts existent and a mistrial was, of necessity, declared.
‘Where for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be obtained without discontinuing a trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.” State v. Gamble, 275 S.C. 492, 272 S.E.2d 796 (1980) quoting Gori v. United States, 367 U.S. 364, 368, 81 S.C[t], 1523, 1526, 6 L.Ed.2d 901 (1961). This Court will not second guess itself now, four months later, by what it observed, heard and felt at the time of its initial ruling. The Defendants’ Motion to Dismiss the Indictments and to prosecution on the ground of double jeopardy is denied.
AND IT IS SO ORDERED.
/S/
James W. Johnson, Jr.Judge — Eighth Judicial Circuit
Laurens, South Carolina
May 15,1995
. As Justice Marshall explained in Holtzman v. Schlesinger, 414 U.S. 1304, 1313, 94 S.Ct. 1, 7, 38 L.Ed.2d 18 (1973), when a single Justice sits in his capacity as a Circuit Justice, he does not act alone, but rather "as a surrogate for the entire Court, from whence [his] ultimate authority ... derives.”
. The district court had no choice but to abandon its firmly-held views in light of our first en banc opinion, which reads as an undisguised mandate to the district court to reach the conclusions that the en banc majority had reached on appeal:
It cannot be seriously disputed that the ongoing state criminal proceedings violate Petitioner's constitutional right not to be placed twice in jeopardy for the same offense.... The undisputed facts demonstrate that the state trial judge acted without any rational justification in granting a mistrial____ [TJhe federalism concerns expressed in Younger v. Harris ... do not counsel against the grant of relief under these circumstances.
Gilliam v. Foster, 61 F.3d 1070, 1074 (4th Cir.1995) (en banc).
*916Prior to our first en banc opinion, the federal district court had concluded that,
the disputed photographs were more important than might first appear____ [I]ssues of provocation and self-defense are present in this case. One factor that is important in resolving these issues is whether one of the Defendants was on the decedent’s property or on the public roadway at the time he fired his weapon. The disputed photographs are close up photographs of the ground which show blood stains. Because of this, they could be used to more clearly document where the shooting occurred.
[T]he court ... concludes that the Petitioners have virtually no likelihood of success on the merits of their double jeopardy claim____
J.A. at 211, 213 (emphasis added).
. In the debacle that has ensued since our initial intrusion into the affairs of South Carolina, the original state trial judge recused himself because he was named as a defendant in this matter, and the second state trial judge was forced to halt the trial four days into it — literally while a witness was on the stand. The chaos that we have created is exemplified in the revealing exchange before the district court that follows:
THE COURT: Can you hold one second. I’m sorry. Let me say that during the last break I was faxed a new copy of an opinion by the Fourth Circuit. I don't want to give anybody heart attacks. A three/four dissenting opinion written by three other minority members of the court. Three other separate opinions. I didn’t know if you seen them.
THE STATE: No, sir.
THE COURT: I will have them copied for you so you will have them. Go ahead. This is the first time I ever had the Fourth Circuit law being made as we progressed.
DEFENSE COUNSEL: I think this is a first for all of us, judge.
J.A. at 432-33 (emphasis added).
. None of the majority’s other asserted bases for invalidating the trial court’s judgment even remotely supports the majority’s conclusion that the trial court abused its discretion. First, that Officer Counts had already laid an adequate foundation for admission of the unadmitted photographs, see ante at 896, 899-90, even if true, is irrelevant to the question of potential jury prejudice. Even assuming that a foundation already existed, the fact remains that Officer Counts' testimony was easily subject to impeachment based upon the Set 2 photographs alone; thus, as defense counsel has consistently argued, the Set 1 photographs were essential corroboration of Counts’ testimony. To invoke the adage, the pictures were worth a thousand of Officer Counts’ words. Second, that the prosecution originally said, "no objection” when it mistakenly thought the unadmitted photographs were being offered into evidence, see ante at 886 n. 4, is of no moment, as the majority itself seems to acknowledge, because the prosecution immediately thereafter withdrew that statement as "premature.” J.A. at 60-61. Third, that the trial judge chose not to inquire further whether the jury had seen the unadmitted photographs in particular, after he had already recalled the jury foreman and been told that "all” of the photographs (including the unadmitted ones) had been "circulated through the jury,” see J.A. at 38, 92-94, and confirmed this fact with the court reporter, J.A. at 93, was by no means irrational. Fourth, that the motion for mistrial may have been invited by the trial court, see ante at 898-99 is not supported by the record and is denied by defense counsel, J.A. at 87, 304; regardless, it is irrelevant because, as the federal district court observed, even if the mistrial was invited, "the standard for judging the grant of mistrial remains the same." J.A. at 498. And fifth, the fact *918that an error might not result in reversal of a conviction, see ante at 899-902, is plainly not dispositive of whether that error was sufficiently prejudicial to support a mistrial.
. See Grand Jury Proceedings Under Seal v. United States, 947 F.2d 1188, 1190 (4th Cir.1991) (cited by the federal habeas court, J.A. at 491, as support for its authority to issue a subsequent written opinion explaining the reasons for its earlier grant of the writ of habeas corpus). Cf. Arizona 434 U.S. at 517 n. 39, 98 S.Ct. at 836 n. 39 ("The Court of Appeals was concerned that the trial judge may [not] have ... considered] the possible impact of [the improper] comments on the impartiality of the jurors. We think this concern is unwarranted.... We are unwilling to assume that a judge, who otherwise acted responsibly and deliberately, simply neglected to consider one of the central issues presented by the mistrial motion and argued by the parties when he made his ruling.”).
. The State of South Carolina adopted Fed. R.Evid. 403 in State v. Alexander, 303 S.C. 377, 401 S.E.2d 146, 149 (1991).
. To support the claim that the government conceded that the photographs had no "prejudicial” effect, the majority relies upon a statement by the prosecution made during argument before the panel on whether to stay the state court’s order of retrial pending a further hearing before the federal district court. See ante at 891. But the majority omits the prosecution’s later clarification during that argument in response to a followup question, that, by "prejudice,” the prosecution meant "inflammatory”; thus, the prosecution explained that the photographs are not like “autopsy photographs,” in that they were not likely to inflame the passions of the jury. The prosecution did not concede that their submission to the jury was not prejudicial, but rather, argued that they were "inherently prejudicial." Transcript of Oral Argument, July 15, 1995, at 49-50.
. It is now known that a serological test had been performed on the dots. The test confirmed that the dots were human blood, but no determination was made as to whose blood it was, a failing that could be significant in light of the testimony that another violent incident had occurred at the same location between two other people earlier that same day, J.A. at 622-23. The prosecution has represented to us that it did not know at the time that any such test had been performed. Most important, though, neither party disputes that the state trial judge did not know of the test. Of course, it is only the trial court’s state of knowledge concerning the dots that is relevant to the question of whether it acted precipitously.
. The majority’s conclusion that the photographs would have been admissible in the state trial is based in large part upon the forced speculation by the prosecution that, if the State had not objected to their admission, the photographs would have been admissible. Ante at 890-91, 895-96, 901-02. However, as the state trial judge understood, J.A. 36-37, 93-94, admissibility of the photographs is irrelevant to the question of whether the trial judge abused his broad discretion. The only possibly relevant inquiry would be whether the photographs would have been actually admitted. Neither party is in a position to know, much less to "concede,” this. The ultimate determination of whether particular evidence will be admitted rests with the trial judge and must be made with knowledge of how the trial has unfolded and how the evidence is to be used at the moment when it is offered.
. In any event, that the Supreme Court in Arizona assumed from the inadmissibility of the statement there in question both that the statement was improper and that it may have affected the jury's impartiality, 434 U.S. at 511, 98 S.Ct. at 833, does not mean, contrary to the majority’s belief, ante at 895-96, 898-99, that if evidence is admissible, then ipso facto it could not affect the impartiality of the jury. The only error alleged in Arizona was that the statement was inadmissible as a matter of law, see 434 U.S. at 499-500, 98 S.Ct. at 827; respondent's argument in defense of the statement was that the evidence "was admissible as a matter of Arizona law, and therefore that the opening statement was proper.” Id. at 511, 98 S.Ct. at 833. Here, in contrast, there was a more fundamental and antecedent error — that the entire process by which evidence is allowed before the jury was corrupted, depriving the court of the opportunity even to consider the admissibility of the evidence at the appropriate time.
. In Arizona, the trial court delayed granting the mistrial for a day to allow defense counsel the extra time it had requested to conduct legal research on the mistrial, 434 U.S. at 514 n. 34, 98 S.Ct. at 835 n. 34. Here, "[a]t no time did any counsel for the defendants ask for more opportunity to be heard or to review other legal precedent prior to the Court's ruling." J.A. at 39. However, the judge first conducted a bench conference about the matter and recessed court in order to give counsel for the parties an opportunity to conference and discuss the matter. J.A. at 90-91, 303. Thus, the majority's attempt to disparage the opportunity for counsel to be heard on the matter, ante at 898 n. 21, rings hollow. See Sumner v. Mata, 449 U.S. 539, 546-48, 101 S.Ct. 764, 768-70, 66 L.Ed.2d 722 (1981).
. The Ninth Circuit, which was reversed by the Supreme Court in Arizona, described the Arizona trial court as having made "no findings whatsoever.” 546 F.2d 829, 832 (9th Cir.), rev’d 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). According to the court of appeals, the trial judge,
at no time ... indicatefd] the reason(s) why he granted the mistrial. Furthermore, his short order ... is not susceptible to any inference that will fill this void. In the absence of any *925finding by the trial court or any indication that the court considered the efficacy of alternatives such as an appropriate curative instruction to the jury, we must conclude that neither of the tests of Perez. has been met.
. As the trial court noted, J.A. at 39, Arizona does not even require that it make an explicit finding of manifest necessity. 434 U.S. at 517, 98 S.Ct. at 836. Indeed, a fundamental error of the majority is that it has fixed upon the mantra of "manifest necessity” while failing to realize that none of the concerns that underlie the actual constitutional prohibition against double jeopardy are implicated in this case. As the Supreme Court explained long before Arizona, “[t]he double jeopardy provision of the Fifth Amendment ... does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.” Wade, 336 U.S. at 688-89, 69 S.Ct. at 837 (emphasis added). Cf. Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 2880, 106 L.Ed.2d 166 (1989) ("The prophylactic Miranda warnings are 'not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.’" (quoting Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974)); Stone v. Powell, 428 U.S. 465, 479, 481-82, 490-91, 96 S.Ct. 3037, 3045, 3046, 3050-51, 49 L.Ed.2d 1067 (1976) (' "[Tlhe exclusion of illegally seized evidence [pursuant to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)] is simply a prophylactic device intended generally to deter Fourth Amendment violations by law enforcement officers.’ ” (quoting Kaufman v. United States, 394 U.S. 217, 224, 89 S.Ct. 1068, 1073, 22 L.Ed.2d 227 (1969)).
The primary evil that "manifest necessity" was created to prevent — the threat of the State bringing its awesome power repeatedly to bear in an effort to convict a criminal defendant, see Arizona, 434 U.S. at 507-08 & n. 23, 98 S.Ct. at 831 & n. 23 — is simply not present here. The mistrial was prompted solely by the negligence of the defense; there is no allegation either of prosecutorial misconduct or of pretext in the motion for mistrial. See generally Arizona, 434 U.S. at 506-10, 514-15, 98 S.Ct. at 831-33, 835 (describing the "spectrum” of scrutiny given declarations of mistrial and explaining that that scrutiny is far lower when there is no prosecutorial misconduct).
. The prosecution explained as follows an event that occurred prior to defense counsel's placing the unadmitted photographs before the jury:
Earlier in the trial an incident had occurred where it was brought to the court’s attention at a bench conference that an officer, I believe it was Major Gonza Hunter, brought to my attention that he had seen [defense counsel] looking in our notebook during one of the breaks. As opposed to announcing that in open court, I simply brought that to the court's attention with counsel at the bench. My recollection of that conference was that I brought it to the court’s attention. [Defense counsel] stated to the court that she had in fact looked in our notebook, that she had done it in an attempt to find her own notebook. I pointed out to the court that I felt that a little extreme concerning the notebook she looked into had a large gold South Carolina Law Enforcement Officers Association seal on it. That was one of the first incidents that we had.
*926J.A. at 384-85. Before the federal district court, the prosecution stated that this incident was "a motivating factor” in its motion for mistrial, J.A. at 423-24, and, when asked for its views of why the mistrial was declared, explained that,
[fit seems to me that the reason for that was[Judge Johnson’s] concern for what had happened, vis-a-vis two incidents. The first one involving Ms. Goodwin. I don’t know what was said at the bench conference. I did not go there. The second matter was the business about the impropriety of photographs being not just admitted to the jury but picked up and handled by every member of the jury.
Those two things I think said to Judge Johnson that this was some sort of a pattern and his concern for what had happened had reached—
Before counsel could complete his thought, Ms. Goodwin interrupted him:
Your Honor, I object to Mr. Delgado saying what was in Judge Johnson’s mind, that it is not reflected in this record. I move to strike all of what he thinks Judge Johnson was thinking.
J.A. at 428-29 (emphasis added). Because the witness “moved on,” there was no occasion for the court to rule on the motion to strike.