dissenting.
I respectfully dissent from the holding of the majority. I would affirm the decision of Judge Lacey that retrial of petitioner was barred by the double jeopardy clause because the trial judge failed to consider alternatives less drastic than the mistrial. I believe the majority’s holding departs from our prior decisions establishing the requirements for use of the doctrine of manifest necessity to justify declaration of a mistrial.
I agree with the majority that the circumstances in this case more closely resemble those in a jury deadlock situation than in an alleged prosecutorial misconduct situation, and that therefore we are presented with a decision largely committed to the discretion of the trial court. However, as the district court recognized, even in that situation, the trial judge must determine whether there were any alternatives to the declaration of a mistrial. I believe the majority has effectively repudiated the teaching of our earlier cases which hold that “the trial judge [has] a duty to exhaust all other reasonable possibilities before deciding to foreclose a defendant’s option to proceed. . . . The scrupulous exercise of that discretion means that he must seek out and consider all avenues of cure to avoid trial abortion.” United States v. Tinney, 473 *822F.2d 1085, 1089 (3d Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2752, 37 L.Ed.2d 156 (1973). Since I believe that the trial court ignored the “simple and obvious alternativeQ”, United States v. MacQueen, 596 F.2d 76, 83 (2d Cir. 1979), of reinstructing the jury about the possibility of acquitting the defendants, I would hold that the grant of a mistrial was not manifestly necessary and hence violated petitioner’s “valued right to have his trial completed by a particular tribunal.... ” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949), quoted in Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978).1 Accordingly, I would affirm the judgment of the district court granting the petition for habeas corpus.
As the majority states, the standard governing the trial judge’s declaration of a mistrial over defendant’s objection is that “there is a manifest necessity for the act....” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). See also Arizona v. Washington, 434 U.S. at 505-06, 98 S.Ct. at 830-831; United States v. Leppo, 641 F.2d 149 at 152 (3d Cir. 1981). When a mistrial is declared, it is the burden of the state to “shoulder the [heavy] burden of justifying the mistrial if [it] is to avoid the double jeopardy bar.” Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830. It is of course apparent that the word “necessity” cannot be interpreted literally;2 nevertheless we should not uphold a trial court’s discretionary determination that manifest necessity existed for a mistrial where a simple jury instruction might have produced an acceptable verdict.
The obligation of trial judges to consider alternatives before declaring a mistrial is evident from the decision in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). In that case, a tax fraud case against the preparer of tax returns, the trial judge abruptly discharged the jury because the judge believed that the defendant’s customers who were going to testify had not been adequately warned of their own constitutional rights. The Supreme Court found the declaration of a mistrial to have been improper, primarily because it was “apparent from the record that no consideration was given to the possibility of a trial continuance. .. . ” Id. at 487, 91 S.Ct. at 558. The subsequent holdings of this court follow directly from the Jorn case. We have frequently referred to the requirement that the trial court consider alternatives before granting a mistrial over defendant’s objection. I believe that the majority errs in interpreting our recent cases as “speak[ing] only of an available alternative as a factor to consider in determining whether a manifest necessity for a mistrial exists.” at 818. Instead, consideration of those cases makes it clear that unless alternatives have been considered, the trial court may not find manifest necessity for a mistrial.
In United States v. McKoy, 591 F.2d 218 (3d Cir. 1979), the trial judge had declared a mistrial over defendant’s objection because the judge wanted the defendant to consult with independent counsel about whether her attorney should testify in her behalf as an eyewitness or continue to represent her. After the judge declared a mistrial, defendant consulted with appointed counsel who reported to the court that defendant had made a knowing and intelligent choice to dispense with her attorney’s testimony. The court then reset the case for trial with the same trial attorney representing defendant. On appeal, we agreed with defendant’s claim that the retrial violated her double jeopardy rights. Our discussion of the importance of considering alternatives there is equally applicable here:
*823Under the Court’s analysis in Jorn, supra, the government generally must demonstrate that, under the circumstances confronting the trial judge, he had no alternative to the declaration of a mistrial. 400 U.S. at 487, 91 S.Ct. 547. See also Arizona v. Washington, supra, 434 U.S. at 515-16, 98 S.Ct. 824; and only by considering and exhausting all other possibilities can the judge ensure that the defendant has received the full protection of the Double Jeopardy Clause, in reviewing the decision of the trial court, our duty is to see that alternatives to declaring a mistrial were completely canvassed.
591 F.2d at 222. See also United States v. Tinney, 473 F.2d at 1089 (failure to utilize reasonable and obvious alternative of granting a continuance before aborting the trial constituted an abuse of discretion). Other courts have also required trial judges to fully consider alternatives. See, e. g., Harris v. Young, 607 F.2d 1081, 1085-86 (4th Cir. 1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 688, 62 L.Ed.2d 659 (1980); United States v. Pierce, 593 F.2d 415, 417 (1st Cir. 1979); United States v. Sanders, 591 F.2d 1293, 1299 (9th Cir. 1979); United States v. Lynch, 598 F.2d 132, 136 (D.C.Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1287, 59 L.Ed.2d 498 (1979); Dunkerley v. Hogan, 579 F.2d 141, 147-148 (2d Cir. 1978), cert. denied, 439 U.S. 1090, 99 S.Ct. 872, 59 L.Ed.2d 56 (1979); United States v. Kin Ping Cheung, 485 F.2d 689, 691 (5th Cir. 1973).
I believe a requirement that the trial court must consider reasonable alternatives before exercising its discretion to declare a mistrial does not conflict with the Supreme Court’s holding in Arizona v. Washington that the trial court’s decision to grant a mistrial must be accorded great deference where the basis of the declaration stems from the trial proceedings themselves. 434 U.S. at 510-14, 98 S.Ct. at 832-834. In Arizona v. Washington, however, the trial court heard extensive argument on the prosecution’s motion for a mistrial, including the prosecutor’s contention that the prejudice to the jury caused by the defense counsel’s improper opening statement could not be cured by cautionary instructions. Id. at 500-01, 514-15 n.34, 98 S.Ct. at 827-828, 834-835 n.34. Thus, although the trial court did not expressly state that it had considered and rejected as inadequate any alternative solutions, it may fairly be concluded that the court had determined that the alternative of cautionary instructions would not have protected the state’s right to a “full and fair opportunity to present [its] evidence to an impartial jury.” Id. at 505, 98 S.Ct. at 830. (footnote omitted).
In the case sub judice, the only indication given by the trial judge as to why he decided not to give a new instruction to the jury — after he himself alluded to the possibility — was that the new instruction had not been requested. As I note infra, this is an insufficient reason to justify failure to attempt an alternative to the declaration of a mistrial. Although Arizona v. Washington holds that an on-the-record discussion of alternatives and reasons for rejecting them is not required, here the fact that the trial judge stated that he did not give new instructions because they were not requested indicates that he failed to pursue the- availability of alternatives. Where no harm could result from the repetition or clarification of instructions, it is difficult to justify the failure to reinstruct. Again, this case is distinguishable from Arizona v. Washington, where reliance on cautionary instructions “[would] not necessarily remove the risk of bias that may be created by improper argument.” Id. at 513, 98 S.Ct. at 834. Thus, I believe this case is governed by the rule that the trial judge’s discretionary power to declare a mistrial over defendant’s objection can only be exercised when no reasonable alternatives to this course of action exist. In fact United States v. McKoy was decided after Arizona v. Washington, and wé reaffirmed the vitality of our previously enunciated rule to this effect. 591 F.2d at 222.
There are two factors on which the majority apparently relies for its conclusion that the trial judge did not abuse his discretion in the instant case: first, that the *824acquittal instruction might not have been proper under New Jersey,law; and second, that the instruction was never requested by the defendant, at 819.
The district court held that the trial judge improperly neglected to consider the alternative of instructing the jury that it should acquit the defendants if it could not determine which controlled substance was involved in their offenses. The majority indicates it is not satisfied that New Jersey law requires a jury to determine the exact identity of the controlled dangerous substance and therefore concludes that the suggested instruction might be an inaccurate statement of New Jersey law. at 819. I believe that the instruction which should have been given need not have focused on the failure to identify the CDS, but, in the unusual circumstances of this case, should have repeated the general acquittal instructions. While ordinarily such a course might, not be required, in this case there were notes from the jury stating that it was unable to determine what CDS was involved, a note that “there are a few people who would like to reverse their verdict of guilty to not guilty”, a note stating “We did not consider question 1 thru 5 in our guilty verdicts which could have changed our verdicts to not guilty,” and yet another stating “5 jurors feel that they would reverse their guilty verdicts.” I believe these notes should have prompted the trial court to repeat its general acquittal instruction. In this way, if the jury had decided that its uncertainty regarding the identity of the CDS constituted a reasonable doubt as to defendant’s guilt, it would have been reminded of its responsibility to acquit.3
Furthermore, since the jury appears to have been confused about what to do with a belief of guilt coupled with an uncertainty about the type of CDS involved, it follows that a proper instruction covering New Jersey law — whatever it may be — might well have assisted the jury in reaching an acceptable verdict.
The second factor referred to by the majority was the defendant’s failure to request new instructions. While ordinarily litigants cannot complain of the trial court’s failure to take certain action in the absence of a specific request that it do so, the stringent showing necessary to declare a mistrial convinces me that, at least in the circumstances of this case,4 defendant’s failure specifically to request new instructions does not defeat his claim.
The cases repeatedly refer to the trial judge’s responsibility to consider alternatives without restricting this consideration to alternatives specifically requested. Thus in Jorn the Supreme Court held that it was error for the trial judge to have granted a mistrial instead of merely granting a continuance, notwithstanding the failure of defendant to have requested a continuance. 400 U.S. at 487, 91 S.Ct. at 558. As we stated in United States v. McKoy, “only by considering and exhausting all other possibilities can the judge ensure that the defendant has received the full protection of the Double Jeopardy Clause.” 591 F.2d at 222 (emphasis added).- Similarly in United States v. Tinney, we noted that “[t]he scrupulous exercise of [the] discretion [to grant a mistrial] means that [the trial judge ] must seek out and consider all avenues of cure to avoid trial abortion.” 473 F.2d at 1089 (emphasis added). See also United States v. Brahm, 459 F.2d 546, 550-51 (3d Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 205, *82534 L.Ed.2d 125 (1972) (trial judge must “assure himself” that declaration of mistrial is necessary).
Because I believe that the majority ignores our controlling precedent and that its holding will create confusion as to the proper standard to be applied in the future, I dissent.
. This right is derived from the double jeopardy clause of the Fifth Amendment. See United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971).
. As the English courts have recognized on the issue of mistrials in the hung jury context, “[t]his rule if taken literally seems to command the confinement of the jury till death if they do not agree. .. . ” Winsor v. The Queen, L.R. 1 Q.B. 389, 394 (1866), quoted in Arizona v. Washington, 434 U.S. at 506 n.21, 98 S.Ct. at 831 n.21.
. This case is unlike United States v. Mac-Queen, 596 F.2d 76 (2d Cir. 1979), because the court there had explicitly determined that further reinstruction wás unnecessary in light of the initial instructions and subsequent clarification.
. Defendant did object to the trial court’s sua sponte decision to declare a mistrial and made repeated motions for a judgment of acquittal based on the jury’s inability to identify the CDS or the scope of the conspiracy. Additionally, as the majority notes, the defense attorneys did object to one of the judge’s requests to the jury for clarification, claiming that the new charge directed the jury to enter a guilty verdict and did not ask the jury to consider whether the defendants were innocent, at 814. See generally United States ex rel. Russo v. Superior Court of New Jersey, 483 F.2d 7, 17 (3d Cir. 1973) (overlooking defense counsel’s failure to promptly object to grant of mistrial itself).