dissenting.
The majority holds that, because shoplifting is probative of truthfulness, the question posed by Palma's attorney to TL. was proper under CRE 608(b). Yet the majority's approach is flatly contrary to the plain language of Rule 608(b), which leaves to the "discretion of the [trial] court" whether a specific instance of conduct that is probative of truthfulness can be inquired into on cross-examination. The majority then compounds its error, in my view, by approving the manner in which the question was asked-that is, without warning to either the trial court or the prosecution. Finally, the majority mistakenly accords no deference to the trial court's determination of manifest necessity for a mistrial. Because the trial court exercised sound discretion in finding the question improper under Rule 608(b) and in finding manifest necessity for a mistrial, I would permit retrial of Palma on charges of sexual assault on a child. I therefore respectfully dissent.
I.
Rule 608(b) provides that instances of conduct of a witness" may "in the discretion of the [trial] court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness ..." (emphasis added). Under the language of the rule, the threshold question is whether the specific conduct is probative of truthfulness or untruthfulness; if it is, the trial court must exercise its discretion to decide whether an inquiry into the conduct may proceed. By finding the question proper in this case because it was probative of truthfulness, the majority's analysis misses the second step. The majority's approach thus fails to recognize that "[even if prior acts by a witness bear on credibility [for truthfulness or untruthfulness], the trial judge has discretion under [Rule 608(b) ] either to allow or to block questions about those acts." Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 6:84 at 2283 (8d ed.2007).
In this case, the trial court exercised its discretion specified under Rule 608(b) to find the question improper. First, the court questioned whether the alleged incident even amounted to an act of shoplifting or theft. Second, it expressed concern with the prejudicial impact of the question. Finally, the court expressed frustration with Palma's counsel for asking the question without any notice to it or to the prosecution, in violation of its pretrial order. The majority's rationale-that shoplifting is probative of truthfulness, and that therefore the question posed by Palma's attorney was proper-gives no weight to these discretionary concerns. In other words, the majority gives no meaning to the express language in Rule 608(b) permitting such questions only at "the discretion of the [trial] court." See People v. Pratt, 759 P.2d 676, 681 (Colo.1988) (stating that "the decision whether to allow this type of cross-examination [under Rule 608(b)] is within the discretion of the trial court").
As to the trial court's first concern, the majority conducts a fifty-state survey, con*1135cluding that it is "most persuaded by those courts that have taken the middle approach and have concluded theft is probative of truthfulness or dishonesty." Maj. op. at 1132.1 It then holds that because the question posed by Palma's attorney involved shoplifting, it was proper. Id. But nothing in the decisions cited by the majority, or in the Mueller and Kirkpatrick treatise upon which the majority relies, id. at 1182, suggests that cross-examination regarding theft or shoplifting is categorically proper under Rule 608(b). On the contrary, the treatise suggests that "Itlheft in all its forms is not always an appropriate subject for inquiry." Mueller & Kirkpatrick, § 6:88 at 218. Indeed, the treatise goes on to suggest that "questioning about minor pilfering or stealing should be carefully watched." Id.; see also United States v. Amaechi, 991 F.2d 374, 379 n. 2 (7th Cir.1993) (suggesting a distinction between "walk[ing] off with a $500 jacket as opposed to a stick of gum"). Under the majority's categorical approach, the question was proper simply because it accused T.L. of shoplifting, even though (in the trial court's view) the incident might not have amounted to shoplifting or theft at all.
The majority acknowledges that "a prior act of shoplifting does not always mean a witness will testify untruthfully," and notes that "[this is especially true where there are facts that lessen the blame attached to the act." Maj. op. at 1182. Yet, in the view of the majority, "such considerations generally go to the weight given the evidence by the jury, rather than its admissibility." Id. In other words, under the majority's categorical approach, the discretionary concerns cited by the trial court in this case go to weight, instead of admissibility. Again, the majority's interpretation of Rule 608(b) ignores the plain language of the rule giving the trial court discretion in the admissibility decision.
The trial court's second concern focused on the potential for unfair prejudice that could stem from a question asked with such particularity-that is, stating that an incident of shoplifting occurred on a particular date. The particularity of the description lends cere-dence, in the mind of the jury, to the assertion that the incident did in fact occur as described. "Once [Palma's counsel] asked the question, the jury was clearly informed that [he] believed such an incident had occurred and was improper." Pratt, 759 P.2d at 684. As the Mueller and Kirkpatrick treatise suggests, assessing the prejudicial impact of prior act evidence "seems acute [in the Rule 608(b) context], because there is seldom much certainty that noneonviction misconduct actually occurred." Mueller & Kirkpatrick, § 6:34 at 225; see also Pratt, 759 P.2d at 684 (party must have "good faith basis" to believe incident occurred as de-seribed).
It is also significant in this case that the question was posed to "the prosecution's chief witness[,] ... the thirteen-year-old vie-tim, TL." Maj. op. at 1128. T.L.'s credibility was the key to the case, and the question posed by Palma's counsel "clearly was prejudicial and may have led the jury to discredit [her] testimony," Pratt, 759 P.2d at 685, regardless of the fact that she denied having stolen $100 from her mother's store. As the Mueller and Kirkpatrick treatise suggests, "character may be impugned simply by asking questions about specific behavior, since even a string of emphatic, heartfelt, and categorical denials may leave a witness effectively impeached." Muelle & Kirkpatrick, § 6:84 at 224. The majority simply ignores this aspect of the trial court's discretionary ruling.
Finally, the majority fails to give any weight to the trial court's procedural concerns regarding the manner in which the question was posed by Palma's counsel. In Pratt, we held that a prosecutor, in seeking to cross-examine a witness under Rule 608(b), must obtain a favorable ruling from the trial court prior to attempting to admit the evidence of specific conduct. 759 P.2d at *1136684-85 (imposing such a requirement based in part on CRE 108(c), which provides that "proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means"). Here, the question was asked in front of the jury with no notice to the court or to the prosecution. Furthermore, in its colloquy with Palma's counsel, the court referred to its pretrial order requiring parties to present prejudicial evidence to the court in a motion in limine prior to trial. As the court stated, the purpose of the pretrial order was to permit consideration of problematic issues, such as the propriety of the shoplifting question, in advance of trial and out of the presence of the jury. Palma's counsel was on notice of the problematic nature of his question given that, as the majority acknowledges, Colorado law at the time of trial expressly prohibited the question. See maj. op. at 1181 (citing People v. Jones, 971 P.2d 243, 244 (Colo.App.1998), which held, "a disregard of property rights of others is not probative of a propensity to be truthful or untruthful," and therefore questions about prior shoplifting conduct are not permitted under Rule 608(b)). Palma was therefore required, under Pratt and the pretrial order, to raise the shoplifting issue prior to trial.
The majority disagrees, finding that while it would have been more "prudent" for counsel to have raised the issue prior to trial, he was not required to do so under Rule 608(b). Maj. op. at 1180 n. 2. Yet he was required to do so under the pretrial order and Pratt. The majority describes Profé's holding as a "narrow one" that is applicable only to prosecutors, not defense attorneys. Id. There is nothing in Pratt's rationale, however-namely, the prevention of potentially inadmissible 608(b) evidence from coming before the jury-suggesting such a distinction. Even if the failure to raise 608(b) evidence in advance of trial does not lead to automatic exclusion, it is a factor properly considered by a trial court in the exercise of its 608(b) discretion. In failing to recognize the importance of Pratt and the pretrial order in this case, the majority permits-and potentially encourages-parties to employ a surprise approach to Rule 608(b) evidence.2
IL.
The majority's mistaken analysis of the Rule 608(b) issue-that the question posed by Palma's attorney concerned shoplifting and therefore was proper-leads it to conclude that there was no manifest necessity for a mistrial in this case, and that therefore double jeopardy bars retrial of Palma on the charge of sexual assault on a child. Maj. op. at 1188. More troubling, however, is its conclusion that there was no manifest necessity for a mistrial even though the question was improper under Colorado law as it existed before the majority's ruling today. Maj. op. at 1188. Here, albeit in dicta, the majority again ignores the substantial amount of discretion accorded to the trial court-this time to determine whether a manifest necessity exists to declare a mistrial.
Colorado double jeopardy jurisprudence tracks that of the United States Supreme Court. People v. Schwartz, 678 P.2d 1000, 1011 (Colo.1984). A defendant has a right not to be tried for the same crime twice and to have the trial completed by a particular tribunal. Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). Sometimes, however, "the compelling public interest in punishing crimes can outweigh the interest of the defendant in having his culpability conclusively resolved in one proceeding." Garrett v. United States, 471 U.S. 773, *1137796, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). "Taking all the circumstances into consideration," a trial court may declare a mistrial when "there is a manifest mecessity ... or the ends of public justice would otherwise be defeated." United States v. Perez, 22 U.S. 579, 580, 6 L.Ed. 165 (1824) (emphasis added); see also § 18-1-1301(2)(b), C.R.S. (2008) (adopting manifest necessity standard); Washington, 484 U.S. at 506, 98 S.Ct. 824 (cautioning that " 'necessity' cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity, and we require a 'high degree' before concluding that a mistrial is appropriate"). If jeopardy has attached, a finding of manifest necessity creates an exception that permits retrial. People v. Berreth, 13 P.3d 1214, 1216 (Colo.2000).
The declaration of a mistrial is within the sound discretion of the trial court. Schwartz, 678 P.2d at 1011 ("The determination of whether to declare a mistrial is a matter within the sound discretion of the trial court. ..."). See also Washington, 434 U.S. at 510, 98 S.Ct. 824 (trial court's determination is "entitled to special respect" where prejudicial remarks are involved); Foster v. Gilliom, 515 U.S. 1301, 1303, 116 S.Ct. 1, 132 L.Ed.2d 883 (1995) (Rehnquist, Cireuit Justice 1995) ("[the trial court's judgment about the necessity [of a mistrial] is entitled to great deference. ..."); People v. Owens, 183 P.3d 568, 572-73 (Colo.App.2007) (finding trial court did not abuse its discretion in declaring mistrial when defense counsel referred to victim's "boyfriend" in violation of court's pretrial ruling).
The factual cireumstances in this case are similar to those in Washington. In that case, the Arizona Supreme Court had granted a new trial to the defendant based upon the prosecution's failure to disclose exculpatory evidence. 434 U.S. at 498, 98 S.Ct. 824. During opening statements in the new trial, defense counsel referenced the previous trial and the prosecution's failure to disclose exculpatory information. Id. at 499, 98 S.Ct. 824. The trial judge declared a mistrial because of the prejudicial impact of defense counsel's opening remarks. See id. at 501, 98 S.Ct. 824. On review, the United States Supreme Court found the declaration of a mistrial to be proper. Id. at 503, 98 S.Ct. 824. The Court emphasized the importance of "appellate deference" in a case involving the prejudicial impact of a defense counsel's statement on the jury. Id. at 513, 98 S.Ct. 824. Such deference is appropriate because:
[The trial judge] 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 [of a mistrial] than any reviewing court can possibly be.
Id. at 513-14, 98 S.Ct. 824 (citations and internal quotation marks omitted); see also Foster, 515 U.S. at 1303, 116 S.Ct. 1 (stating that, under Washington, "the trial court's judgment about the necessity [of a mistrial] is entitled to great deference, never more so than when 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 jurors").
Here, the majority fails to accord any deference to the trial court's determination that there was a manifest necessity for a mistrial. Instead, it holds that a cautionary instruction to the jury could have cured any prejudice stemming from Palma's question to TL. Maj. op. at 1133. The question is not, however, whether this court thinks a cautionary instruction might have been sufficient, but rather whether it was an abuse of discretion for the trial court to find a cautionary instruction insufficient under the cireum-stances. The Court in Washington addressed this very point, noting that while "some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions," it would defer to the trial court's decision that such an instruction would have been insufficient. 434 U.S. at 511, 98 S.Ct. 824. While the majority faults the trial court for "failing] to exhaust other reasonable alternatives" such as a cautionary instruction, maj. op. at 1134, there is *1138no "cautionary instruction" exhaustion requirement; rather, the fact that no cautionary instruction was given is a "significant" factor in evaluating whether there was manifest necessity for a mistrial. People v. Castro, 657 P.2d 932, 942 n. 8 (Colo.1983). As we observed in Castro, a retrial were to be automatically barred merely because a reviewing court disagreed with the trial judge's assessment of the situation ... trial judges would be substantially impaired in their efforts to take remedial action to satisfy the legitimate ends of public justice in appropriate cases." Id. (citing Washington, 434 U.S. at 513, 98 S.Ct. 824). Contrary to the majority, I would find that the trial court exercised sound discretion in finding manifest necessity for a mistrial, and would therefore permit retrial of Palma on charges of sexual assault on a child.
IIL.
Because the majority, in my view, fails to recognize the trial court's substantial discretion under both Rule 608(b) and in the manifest necessity determination, I respectfully dissent.
I am authorized to state that Justice COATS joins in this dissent.
. Contrary to the majority's suggestion, the so-called "middle approach" is not a statement about whether or not theft (or shoplifting) is or is not probative of truthfulness. What the "middle approach" does is to permit cross-examination under Rule 608(b) (and its counterparts under federal law and the law of other states) for specific conduct that may not involve actual falsehoods (required by the so-called "more focused" view), but involves some sort of dishonesty. Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 6:33 at 206-07 (3d ed.2007).
. The majority suggests that Rule 608(b) is subject to CRE 403 balancing, maj. op. at 1132, and seems to fault the trial court in this case for not engaging in such analysis. Id. at 1132 n. 10. But the trial court did not need to conduct Rule 403 balancing because it excluded the evidence, properly in my view, in its discretion under Rule 608(b). In addition, the majority's reference to Rule 403 balancing hardly restores the trial court's discretion under 608(b) that it takes away. Under the majority's categorical approach, the question here was proper under Rule 608(b) even though, as the trial court found, (1) there were concerns about whether the incident amounted to shoplifting or theft at all; (2) there was a risk of undue prejudice from the particularity of the question; and (3) the question was posed in a surprise fashion. Given the fact that the majority finds these discretionary considerations unavailing in the Rule 608(b) context, it is difficult to see how Rule 403 balancing could render a different result under its approach.