On February 26, 1979, George Jenieh, the defendant, filed a notice of appeal to the court of appeals from an order of the circuit court denying his motion to dismiss the criminal complaint on the ground that a second trial would place him twice in jeopardy contrary to the federal and Wisconsin constitutions.1 Upon motion of the State, the court of appeals dismissed defendant’s appeal, concluding that the order appealed from was not an order appealable as of right. The court of appeals refused, on its own motion, to grant defendant additional time in which to seek leave to appeal. The court of appeals, in effect, treated the defendant’s notice of appeal as a request for leave to appeal and then refused to grant leave to appeal. The court of appeals concluded upon review of the record and defendant’s brief that although former jeopardy provisions are intended to prohibit a second trial, under the appropriate circumstances, and not merely to serve as a basis for reversal of a subsequent conviction, “the issue raised has such doubtful merit that it is unlikely that subjecting the defendant to *77trial at this time would cause him substantial or irreparable injury.”
We granted defendant’s petition to review the decision of the court of appeals that the order of the circuit court was not a final order appealable as of right. A decision by the court of appeals that an order is not appealable as a matter of right is a decision reviewable by this court upon a petition to appeal.2
Defendant asserts on appeal that the court of appeals erred in dismissing his appeal and that the circuit court *78erred in not dismissing the charges because of double jeopardy.
We conclude that the court of appeals erred in not hearing the appeal, and we further conclude that the order of the circuit court should be affirmed.
I.
We turn first to the question whether a pretrial order denying a motion to dismiss based on double jeopardy is appealable as of right to the court of appeals.
Sec. 808.03, Stats., provides for appeals to the court of appeals as of right and by permission. Sec. 808.03 governs appeals as of right in civil and in criminal cases:3
“(1) Appeals as of right. A final judgment or a final order of a circuit court or county court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment or order entered in accordance with s. 806.06(1) (b) or 807.11(2) which disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding.
“(2) Appeals by permission. A judgment or order not appealable as a matter of right under sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will:
“(a) Materially advance the termination of the litigation or clarify further proceedings in the litigation;
*79“ (b) Protect the petitioner from substantial or irreparable injury; or
“ (c) Clarify an issue of general importance in the administration of justice.”
The question of what orders and judgments are final for purposes of appellate review is a recurring question of statutory interpretation.4 The final judgment — final order rule is designed to prohibit piecemeal disposal of litigation and thus plays an important role in the movement of cases through the judicial system. Historically courts have, however, placed qualifications on the rule where the need for immediate review outweighs the purposes of the rule.
The defendant urges us to adopt the reasoning of the United States Supreme Court in Abney v. United States, 431 U.S. 651 (1977), and to treat this order as a final order. In Abney the United States Supreme Court held that pretrial orders rejecting claims of former jeopardy are “final decisions” under the federal statutes5 and are therefore immediately appealable as of right because the order satisfied three criteria.
First, the order denying the double jeopardy claim finally and completely determines a claim of right; the trial court has rejected the double jeopardy claim. Second, the double jeopardy claim is separable from, collateral to and independent of the principal issue at trial, namely the guilt of the accused of the crime charged.
Third, the double jeopardy rights asserted are too important to be denied review. The United States Su*80preme Court recognized that if the accused were forced to face a second trial, without review of his double jeopardy claim, the accused would lose the full protection of constitutional rights even if there were an acquittal at the second trial or the conviction at the second trial were reversed on double jeopardy grounds. The Court said that “if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.”
We recognize, as did the United States Supreme Court in Abney, that interlocutory or piecemeal appeals are undesirable, especially in criminal prosecutions. The delays caused by piecemeal appeals are “inimical to the effective and fair administration of the criminal law.” DiBella v. United States, 369 U.S. 121, 126 (1962). At the same time we recognize that the double jeopardy provisions protect an accused not only against being twice subjected to punishment but also against being twice put to trial for the same offense. In Green v. United States, 355 U.S. 184, 187-188 (1957), Mr. Justice Black described the purpose of the clause as follows:
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” (Quoted with approval, Abney v. United States, 431 U.S. at 661-662.)
In Berry v. State, 90 Wis.2d 316, 324, 280 N.W.2d 204 (1979), this court similarly viewed the double jeopardy protection:
*81“The key to invoking double jeopardy protection is not simply whether a defendant, as in the present case, can point to a prior verdict or judgment of acquittal, but whether the defendant might be subjected to multiple prosecutions.”
Three members of the court are persuaded by the reasoning of the Abney case and hold that a pretrial order denying a motion to dismiss based on double jeopardy is a final order and the defendant may, before the new trial is held, appeal that order “as a matter of right to the court of appeals” pursuant to sec. 808.03(1), Stats.6 To prevent defendants from engaging in dilatory appeal tactics, the court of appeals should establish procedures requiring the parties and the court to give the appeal expedited treatment.7
*82Justice Callow and the author of this opinion would reach a result similar to the one reached by our colleagues, but by a different route. We would hold that this appeal does not come within sec. 808.03(1) but falls within sec. 808.03(2), Stats., an appeal by permission of the court of appeals; that ordinarily sec. 808.03(2), Stats., envisions the court of appeals looking at the equities of each individual case to determine whether the aggrieved party should be allowed to obtain appellate review of a non-final order; that it is not necessary for the court of appeals to exercise its discretion on the basis of each case in this type of order; that for the reasons set forth in Abney, every order denying a motion to dismiss based on double jeopardy falls within the criteria of sec. 808.03(2), Stats., for granting leave to appeal; and that therefore the court of appeals should grant every petition for leave to appeal such an order as a matter of course. Justice Callow and I would, therefore, pursuant to this court’s superintending and administrative authority8 and in order to expedite court processes and to further justice, direct the court of appeals (1) to grant each defendant leave to appeal from a pretrial order denying a motion to dismiss on double jeopardy grounds as a matter of course if the defendant elects to petition the court of appeals in the time and manner provided in Rule 809.50, Stats. ;9 and (2) to establish pro*83cedures requiring the parties and the court to give the appeal expedited treatment.10
II.
We turn now to the merits of defendant’s claim that a further prosecution is barred by the double jeopardy clauses of the state and federal constitutions. Jeopardy had attached at the time the mistrial was declared because the jury had been selected and sworn. Sec. 972.07, Stats.;11 Crist v. Bretz, 487 U.S. 28 (1978). Although jeopardy had attached, the trial did not end in a conviction or an acquittal. Whether further prosecution is per*84missible depends on the facts and circumstances of the case.
A brief description of the context in which a mistrial was declared by the circuit court follows: The defendant was charged in a criminal complaint dated April 11, 1977 with conspiracy to deliver marijuana in violation of secs. 989.31, 161.14(4) (k) and 161.41(1) (b), Stats. At the preliminary examination in September, 1977, and at a hearing on a motion to suppress in February, 1978, the defendant was represented by Attorney Carter and Attorney Schaefer and the State was represented by Assistant District Attorney Lowe. After several continuances, a pretrial conference was scheduled for October 16, 1978, and the jury trial for October 17, 1978. On October 17, 1978, Attorney Carter and Attorney Piano represented the defendant; Assistant District Attorney Molitor stated that he appeared on behalf of the State. Assistant District Attorney Lowe stated that he appeared specially and requested to make a statement.
Assistant District Attorney Lowe requested an adjournment of the trial to permit Assistant District At-orney Molitor to prepare for trial. Assistant District Attorney Lowe explained that until about ten days prior to the trial date he had been assigned to prosecute the case and he had been involved in all the stages of the proceedings. He stated that Attorney Piano had informed him about ten days earlier that Attorney Piano would be assisting Attorney Carter as defense counsel. Assistant District Attorney Lowe stated that he was a candidate for circuit judge in Milwaukee County and that Attorney Piano was co-manager of the campaign. Assistant District Attorney Lowe stated that he thought that he should withdraw from participation in the prosecution of the case because of the appearance of impropriety. Because the case had been assigned to Assistant District Attorney Molitor on the day preceding trial, *85Assistant District Attorney Lowe asked that the state be given more time to prepare the case. The State acknowledged that defense counsel had gone to great trouble to secure the presence of witnesses for the trial and that an adjournment would inconvenience counsel and the court. Assistant District Attorney Molitor requested a short adjournment, perhaps of one week, because he did not feel he would be doing the State or the community a service in prosecuting the case with such little preparation. He said he had also noticed from the file that perhaps two or three essential witnesses had not been subpoenaed, one of which was an officer who was on vacation until the following day.
Defense Attorney Piano stated that he had represented the defendant previously and that he was well acquainted with the case. He stated that if the court adjourned the matter, his schedule was such that he could not try. the case until after the end of December, 1978, and that although witnesses had been subpoenaed for this trial, the defendant would not object to or request an adjournment..
Attorney Carter stated that his schedule was too full for the rest of that year for a trial of this length, but that in proceeding to trial with the State being represented by a lawyer who had not had time to prepare the case “there is a substantial risk that either justice will not be served or possibly even that something will happen to create a mistrial.”
The circuit court noted that a long time had elapsed in bringing this case to trial and that there had been no indication at the pretrial conference on the previous day that there might be a request for an adjournment. The circuit court recognized that ten days was not a long enough period of time in which to reassign the case in the district attorney’s office. However, the circuit court denied the request for adjournment because no request had been made at the pretrial conference; re*86scheduling- the trial in the near future did not appear possible; there was extreme inconvenience and cost to the parties to again subpoena witnesses from New York and California; and justice required that “old cases” be tried promptly.
The circuit court commented that it did not think the “political” relationship between counsel for the state and for the defense would reduce their ability to perform their duties and concluded that “the need to maintain efficient administration of justice outweighs the appearance of potential conflict, which I do not believe actually exists, and therefore, I think that to grant an adjournment would be inappropriate.” The circuit court asked Assistant District Attorney Lowe to exercise his independent judgment as to the degree of his participation in the trial.
The circuit court invited the attorneys to submit proposed voir dire questions which on the previous day the court had asked the lawyers to prepare. The defense submitted proposed questions, and the State submitted a hand written list of areas of concern. At one point the State took a twenty-minute recess to write its proposed voir dire questions.
After the circuit court discussed and revised the questions with counsel, Assistant District Attorney Lowe said he wanted to note that:
“The Court has been submitted 44 questions by the defendant, it accepted 38 of those questions without modification. The State submitted 14 questions and I don’t think three got by without modification.”
The circuit court responded:
“I think, Counsel, that that does not reflect on a bias on the part of the Court. It may reflect on the fact that the defendant submitted theirs in writing, typed up, dictated, well-thought out, rather than to show up on the day of trial and then ask for a recess of twenty *87minutes to draft their questions. I’m sure had your questions arrived in a form similar to Mr. Piano’s and Mr. Carter’s, probably they would have been thought out and any modifications might have been unnecessary.”
The circuit court began questioning the jury panel to determine whether any potential juror was related to or acquainted with the defendant, the attorneys and the prospective witnesses. Assistant District Attorneys Molitor and Lowe were introduced as representing the State. The circuit court asked Assistant District Attorney Lowe to introduce prospective witnesses for the State and Assistant District Attorney Lowe stated:
“. . . Your Honor, I think the jury should know that Mr. Molitor will be handling this case and I will be associating because it may become necessary for me to become a witness in this matter and, therefore, Mr. Mol-itor will be handling it. But the State may call the following witnesses. If you recognize any of these names, would you please raise your hands. . . .”
After further questions, the jury and the alternates were chosen.
After the jury left the courtroom, Attorney Carter questioned the propriety of Assistant District Attorney Lowe’s stating that Lowe was a potential witness in the case. Attorney Carter said that Assistant District Attorney Lowe’s statement came as a complete surprise because Lowe’s name was not on the list of witnesses supplied to the defense. Attorney Carter suggested that the Code of Professional Responsibility12 required Lowe *88to withdraw from the case and that if Lowe testified, a mistrial would have to be declared. Assistant District *89Attorney Lowe stated that he had told the jurors that he was a potential witness and that “for that reason I was not taking an active role in the presentation of the witnesses on the stand.” He noted that he might he called “on the issues of the John Doe if they are raised during this trial.”
The circuit court indicated it would hear additional arguments in this matter the following morning. The jury returned to the courtroom and was sworn and given *90pretrial instructions. Assistant District Attorney Lowe’s request that the opening statement be postponed until the following morning was denied. Assistant District Attorney Molitor presented the State’s opening statement to the jury, and the court recessed until the following morning, October 18, 1978.
On October 18, 1978, out of the presence of the jury, Attorney Carter presented his research on the issue of an attorney being a witness. Assistant District Attorney Molitor responded that Assistant District Attorney Lowe was only assisting him in the case, that the State did not plan, at that time, to call Lowe as a witness, and that the defense had not indicated that it would call Lowe as a witness. The circuit court asked Assistant District Attorney Lowe to state whether he would be a witness. Lowe stated that he was not going to be a witness for the State, but he did not know if he would be called by the defense.
Attorney Carter asserted that Assistant District Attorney Lowe’s statement to the jury that it might be necessary for him to be a witness had already damaged the defendant and prejudiced the jury’s mind, especially because the jury had been instructed that the State is not required to use all of its witnesses. The defense thought that Assistant District Attorney Lowe’s statement to the jury added credibility to the State’s case and that the defense would not be able to cross-examine Lowe as to credibility. Assistant District Attorney Molitor suggested that the circuit court give a “curative instruction to the jury that perhaps Mr. Lowe was mistaken, he will not be called as a witness in this case,” in order to “obviate any impropriety, if there has been one.” Attorney Carter argued that no instruction could cure the damage, and he requested the circuit court to declare a mistrial. If a mistrial was not declared, Attorney Carter requested the court that Assistant District Attorney Lowe not participate in the case.
*91The circuit court reviewed the applicable sections of the Code of Professional Responsibilities and stated that “Mr. Lowe’s representation to the jury yesterday, that he may be called as a witness, was a matter that under normal sets of circumstances would . . . compel his necessity to withdraw.” However, the court did not believe that Lowe’s “mere announcement that he might be a witness” had a prejudicial effect. After additional discussion on what curative instruction, if any, the circuit court should give, the parties requested a conference with the judge which was held off the record. After the conference the circuit court told the jury that it had declared a mistrial for complicated legal reasons and that the matter would be rescheduled and retried after they had completed their service as members of the jury.
After the jury was excused and left the courtroom, the circuit court explained on the record the reasons for declaring a mistrial: that the defense had moved for a mistrial because of Assistant District Attorney Lowe’s statement to the jury that he might be a witness; that it was determined that a curative instruction would not be an appropriate remedy; that the only option would have been to compel Assistant District Attorney Lowe to withdraw from participation in the case; and that this alternative was not viable because Assistant District Attorney Molitor was unfamiliar with this complicated case.
Attorney Carter stated on the record that the defense did not believe there was any prosecutorial misconduct in this case and that the unforeseen circumstances leading to the mistrial had begun about ten days before the trial began.
A second trial was scheduled for February 27, 1979, and on February 21, 1979, the defense filed two motions to dismiss, one on the basis of denial of right to speedy trial, and the other on the basis of double jeopardy.
*92At the pretrial conference on February 26, 1979, the circuit court issued a written order denying the motion to dismiss on the basis of double jeopardy, and on the same day, the defendant filed a notice of appeal from the order to the court of appeals.
In cases where the defendant affirmatively moves for a mistrial, as in the case at bar, and the proceedings are terminated at defendant’s request and with his consent, the general rule is that the double jeopardy protection is not a bar to reprosecution. The defendant, by seeking a mistrial has surrendered his “valued right” to secure a verdict from the first tribunal. However, if defendant’s motion for mistrial is prompted by prosecutorial or judicial misconduct which was intended “to provoke” defendant’s motion or was otherwise “motivated by bad faith or undertaken to harass or prejudice” the defendant or “to afford the prosecution a more favorable opportunity to convict” the defendant, double jeopardy does bar further prosecution. See, e.g., Lee v. United States, 432 U.S. 23, 33 (1977); United States v. Dinitz, 424 U.S. 600, 611 (1976) ; United States v. Jorn, 400 U.S. 470, 485 (1971); United States v. Tateo, 377 U.S. 463, 467 (1964); State v. Harrell, 85 Wis.2d 331, 335, 270 N.W.2d 428 (Ct. App. 1978). If the defendant’s motion for a mistrial is prompted by prosecutorial error made in the exercise of good faith and professional judgment, there generally is no bar to retrial. State v. Calhoun, 67 Wis.2d 204, 225, 226 N.W.2d 504 (1975).13
The defendant asserts that the prosecutor deliberately forced a mistrial in this case in an effort to gain more time. Defendant bases his assertion on the fact that the *93prosecutor asked for an adjournment which was denied. The prosecution could have thought that it had less likelihood of convicting the defendant with an “unprepared” assistant district attorney prosecuting the case, hut there is no indication in the record that Assistant District Attorney Lowe made the statement to the jury with the intent of provoking a mistrial in order to gain time and a more favorable opportunity to convict the defendant. The defendant attempts to prove that Assistant District Attorney Lowe deliberately prejudiced the jury by arguing that the record shows that the State either never intended to call Lowe as a witness (Lowe was not on the list of witnesses) or that the State did intend to call Lowe as a witness but used this technique in order to have Lowe continue to participate as a prosecuting attorney. The record does not support either theory. The record shows that Assistant District Attorney Lowe apparently thought in good faith that he might be called as a witness, and that if there was to be no adjournment he was required to take a limited role at trial.
The assistant district attorney’s informing the jury that he might be a witness, even if it constituted error, was not the product of “prosecutorial overreaching” as that phrase has been interpreted in prior decisions; the prosecutor’s conduct was certainly not so patently baseless as to lead us to infer that the prosecutor intended the misconduct to result in a mistrial or was motivated by bad faith.14
*94At the time the mistrial was declared, defense counsel stated that there had been no prosecutorial misconduct causing the mistrial.15 In his motion to dismiss further *95prosecution on double jeopardy grounds, defense counsel argued that prosecutorial misconduct caused the mistrial. Defense counsel maintains that the prosecutor’s “bad motives” were not discernible at the time of the mistrial but were demonstrated later when the prosecution added witnesses to those previously listed. The record does not show that the prosecution intended to cause a mistrial to obtain time in which to prepare a stronger case. During the interval between the mistrial and the date of the new trial, it appears that additional preparation was undertaken by the State, but that some of this additional preparation was probably due to the defense counsel’s expressed intent of calling additional witnesses.
We conclude that the court of appeals should have heard defendant’s appeal, and we further conclude that defendant’s double jeopardy claim is without merit. We affirm the order of the circuit court.
By the Court. — Decision of the court of appeals is reversed; order of the circuit court is affirmed.
The Fifth Amendment to the United States Constitution provides:
“No person shall he . . . subject for the same offense to be twice put in jeopardy of life and limb.”
A similar provision is found in Art. I, sec. 8, of the Wisconsin Constitution, which reads:
“. . . no person for the same offense shall be put twice in jeopardy, of punishment, . . . .”
Sec. 808.10, Stats., provides for review of a decision of the court of appeals by the supreme court:
“808.10 Review by the supreme court. A decision of the court of appeals is reviewable by the supreme court only upon a petition to appeal granted by the supreme court. The petition to appeal shall be filed in the supreme court within 30 days of the date of the decision of the court of appeals.”
We have previously had occasion to consider what decisions of the court of appeals are reviewable by this court on a petition to appeal. As we noted in In the Interest of A. R., 85 Wis.2d 444, 270 N.W.2d 581 (1978), although see. 808.10 does not define the word “decision,” the definition of decision set forth in sec. 752.41 (1), Stats., is applicable. Sec, 752.41(1), Stats., states:
“Decisions. (1) In each case, the court of appeals shall provide a written opinion containing a written summary of the reasons for the decision made by the court.”
We have interpreted the term “decision” to be a decision of the court of appeals which finally determines that matter presented. When the parties agree that the order of the circuit court is not a final order appealable as of right, this court ordinarily will not review the court of appeals’ exercise of its discretion whether to hear the appeal. We concluded in State v. Whitty, 86 Wis.2d 380, 388, 272 N.W.2d 842 (1978), that “[i]n the usual case, an order of the court of appeals denying permission to appeal from a nonappealable order, is not reviewable in this court because it is not a decision finally disposing of the case.” However, where the parties dispute as to whether the circuit court’s order. is a final order appealable as of right, a decision by the court of appeals that an order is not a final order which may be appealed as a matter of right to the court of appeals is a decision reviewable by this court upon a petition to appeal.
Sec. 808.03, ¡Stats., is substantially similar to Standard 8.12, American Bar Association Standards Relating to Appellate Courts (1977). For limiting the defendant’s right to review to a final judgment adverse to him, see Standard 1.8, American Bar Association Standards Relating to Criminal Appeals (1970).
An appeal by a defendant in a criminal case is regulated not only by see. 808.03 but also by see. 974.02(1), Stats., which states that an appeal taken to the court of appeals by the defendant in a criminal case must be taken in the time and manner provided in Rule 809.30, Stats. See also sec. 974.05, Stats., relating to an appeal by the state in a criminal case.
Martineau and Malmgren, Wisconsin Appellate Practice, secs. 401-404 and 2702 (1978).
Although there are constitutional overtones in the opinion, we do not interpret the Abney decision as holding that immediate appellate review of a pretrial order denying a motion to dismiss on double jeopardy grounds is required by either double jeopardy or due process principles. Abney was decided on the basis of federal statutes governing federal appellate jurisdiction.
Cf. State v. Bagnall, 61 Wis.2d 297, 802, 212 N.W.2d 122 (1973):
“The basic issue is whether the granting of a motion to withdraw a guilty plea is in its nature a final order appealable by the state under sec. 974.05(1) (a), Stats. Jeopardy is waived by the entry of a motion to withdraw a guilty plea and the order is certainly adverse to the state. The only debatable element is whether such an order has the requisite finality.
“While it is generally true that to be final an order must dispose of the whole matter in litigation, it is also true that an order is appealable where even though it does not dispose of the entire subject matter in litigation it does terminate a particular proceeding or action. The order here terminates the guilty plea proceeding which is separate enough from the trial which may result to warrant being held a final order and therefore appealable under sec. 974.05(1) (a), Stats.” (Notes omitted.)
In holding that the court of appeals must review an order denying the defendant’s motion to dismiss on double jeopardy grounds, we do not require the court of appeals to review other claims made in defendant’s brief. In the case at bar, the defendant did not appeal from an order denying his motion to dismiss on the grounds of denial of right to speedy trial. His brief discusses this question but it is not before the court.
Art. VII, sec. 3(1) of the Wisconsin Constitution provides: “The Supreme Court shall have superintending and administrative authority over all courts.”
In Hortonville Ed. Asso. v. Joint School Dist. No. 1, 66 Wis.2d 469, 497, 225 N.W.2d 658 (1975), quoted with approval in In Interest of D. H., 76 Wis.2d 286, 294, 251 N.W.2d 196 (1977) we said: “When an adequate remedy or forum does not exist to resolve disputes or provide due process, the courts, under the Wisconsin Constitution, can fashion an adequate remedy.”
“809.50 Rule (Appeal from judgment or order not appealable as of right). (1) A person shall seek leave of the court to appeal a judgment or order not appealable as of right under s. 808.03(1), *83by filing within 10 days of the entry of the judgment or order a petition and supporting memorandum, if any. The petition must contain:
“(a) A statement of the issues presented by the controversy;
“(b) A statement of the facts necessary to an understanding of the issues; and
“(c) A statement showing that review of the judgment or order immediately rather than on an appeal from the final judgment in the case or proceeding will materially advance the termination of the litigation or clarify further proceedings therein, protect a party from substantial and irreparable injury, or clarify an issue of general importance in the administration of justice.
Other states have divided on whether to grant immediate appellate review to orders denying motions to dismiss on double jeopardy grounds. See State v. Fisher, 2 Kan. App.2d 353, 579 P.2d 167 (1978); People ex rel. Mosley v. Carey, 74 Ill.2d 527, 387 N.E.2d 325 (1979); Gray v. State, 36 Md. App. 708, 375 A.2d 31 (1977); County Court In and For The County of El Paso v. Ruth, 575 P.2d 1 (Colo. 1978); and Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (Pa. 1977).
“972.07 Jeopardy. Jeopardy attaches:
“(1) In a trial to the court without a jury when a witness is sworn;
“(2) In a jury trial when the selection of the jury has been completed and the jury sworn.”
See SCR 20.24 and SCR 20.25 which restate DR 5-101 and DR 5-102 of the Code of Professional Responsibility:
“SCR 20.24 Refusing employment when the interests of the lawyer may impair his or her independent professional judgment. (1) Except with the consent of the client after full disclosure, a lawyer may not accept employment if the exercise of his or her professional judgment on behalf of the client will be or reasonably *88may he affected by his or her own financial, business, property or personal interests.
“(2) A lawyer may not accept employment in contemplated or pending litigation if he or she knows or it is obvious that he or she or a lawyer in his or her firm ought to be called as a witness, except that the lawyer may undertake the employment and the lawyer or a lawyer in the firm may testify:
“(a) If the testimony will relate solely to an uncontested matter.
“(b) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
“(c) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or the firm to the client.
“(d) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or the firm as counsel in the particular case.”
“SCR 20.25 Withdrawal as counsel when the lawyer becomes a witness. (1) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or she or a lawyer in his or her firm ought to be called as a witness on behalf of his or her client, the lawyer shall withdraw from the conduct of the trial and the firm, if any, may not continue representation in the trial, except that the lawyer may continue the representation and the lawyer or a lawyer in the firm may testify in the circumstances enumerated in SCR 20.24 (2) (a) to (d).
“(2) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in the firm may be called as a witness other than on behalf of- the client, the lawyer may continue the representation until it is apparent that his or her testimony is or may be prejudicial to the client.”
See SCR 20.23(2) (h) and (i), which restate Ethical Considerations EC 5-9 and EC 5-10 of the Code of Professional Responsibility :
“(h) Occasionally a lawyer is called upon to decide in a particular case whether he or she will be a witness or an advocate. If a lawyer is both counsel and witness, he or she becomes more *89easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his or her own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.
“(i) Problems incident to the lawyer-witness relationship arise at different stages, they relate either to whether a lawyer should accept employment or should withdraw from employment. Regardless of when the problem arises, his or her decision is to be governed by the same basic considerations. It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that he or she will be called as a witness because his or her testimony would be merely cumulative or if his or her testimony will relate only to an uncontested issue. In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he or she will likely be a witness on a contested issue, he or she may serve as advocate even though he or she may be a' witness. In making such decision, he or she should determine the personal or financial sacrifice of the client that may result from his or her refusal of employment or withdrawal therefrom, the materiality of his or her testimony and the effectiveness of his or her representation in view of his or her personal involvement. In weighing these factors, it should be clear that refusal or withdrawal ■will impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment. Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his or her becoming or continuing as an advocate.”
For a discussion of mistrial and double jeopardy, see Sehulhofer, Jeopardy and Mistrials, 125 U. Penn. L. Rev. 449 (1977); Rosenzweig, Mistrials & Double Jeopardy, 15 Am. Cr. L. Rev. 169 (1977); Beeny, Double Jeopardy Consequences of Mistrial, Dismissal & Reversal of Conviction on Appeal, 16 Am. Cr. L. Rev. 235 (1979).
Defense and prosecution attorneys and the circuit court researched the question of the ethical lawyer’s considerations involved in participating as both witness and counsel, and' were unable to reach an agreement as to what the Canons of Professional Responsibility required, whether the jury was prejudiced and whether curative instructions would mitigate or aggravate the problem. For discussion of the lawyer as witness and as advocate see Zeidler v. State, 189 Wis. 44, 48, 206 N.W. 872 (1926); *94Baumgartner v. State, 198 Wis. 180, 186, 223 N.W. 419, 224 N.W. 474 (1929); Kink v. Combs, 28 Wis.2d 66, 73, 136 N.W.2d 789 (1965); Mack Trucks, Inc. v. Sunde, 19 Wis.2d 129, 135, 119 N.W.2d 321 (1963); Harris v. State, 78 Wis.2d 357, 369, 254 N.W.2d 291 (1977); State v. Koller, 87 Wis.2d 253, 271, 274 N.W.2d 651 (1978). See also, Enker, The Rationale of the Rule That Forbids a Lawyer to be Advocate and Witness in the Same Case, 1977 A.B.F. Res. J. 455.
The Standing Committee on Professional Ethics of the State Bar of Wisconsin has advised that a special prosecutor should be obtained if the district attorney or an assistant district attorney is likely to testify in a case. Code of Professional Responsibility and Opinions of the Standing Committee on Professional Ethics of the State Bar of Wisconsin, Wisconsin Bar Bulletin Supplement to June 1979 issue, Memorandum Opinion, February 7, 1969, p. 84.
“Mr. Carter: If it please the Court, with respect to the granting of the motion for mistrial, the defendant would state for the record that said motion was made out of what the defendant felt was a necessity caused by a set of circumstances which began approximately ten days before the commencement of this trial, on October 15, and that the Defense is in no way making any representations or any statements to this Court that the Defense feels that there was any prosecutorial misconduct. The defendant wants it very clear upon the record that we believe that this has resulted from a set of circumstances which were not completely able to be foreseen by the parties to this litigation, and that in no way does our motion for mistrial rest upon the basis of any prosecutorial misconduct and in no way do we make any statement to this Court that Mr. Lowe or anyone connected with the prosecution has done anything other than vigorously represent their client, the State of Wisconsin.
“We wish to advise the Court that in light of the most recent decision on mistrial, which I believe emanated from the Court of Appeals of Milwaukee County in State v. Harrell in September of this year [85 Wis.2d 331, 270 N.W.2d 428 (Ct. App. 1978)], that we do not make any representations of any prosecutorial misconduct or anything that the prosecutors did wrong. It was a series of events -that we believe was unforeseen at the time that *95they started to move forward and we thank the Court for its indulgence and for its fair and we believe just determination on that motion.”