Double Jeopardy

Double Jeopardy The Double Jeopardy Clause of the Fifth Amendment states: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The principle is one of the oldest in Western civilization, having roots in ancient Greek and Roman law. Nevertheless, the clause is one of the least understood in the Bill of Rights, and the Supreme Court has done little to remove the confusion.

The Court decided relatively few double jeopardy cases until after 1969, when, in Benton v. Maryland, it held that the Fifth Amendment's double jeopardy provision is incorporated in the Fourteenth Amendment and applies to the states as well as the federal government (see Incorporation Doctrine).

As a general proposition, the Double Jeopardy Clause applies only to criminal cases and consists of three separate constitutional protections. First, it protects against a second criminal prosecution for the same offense after acquittal. Second, it protects against a subsequent prosecution for the same offense after conviction. Finally, it protects against multiple punishments for the same offense.

The simplicity of these general statements masks the real confusion resulting from their application. As Judge Monroe McKay observed, terms like “acquittal,” “multiple punishments,” and “same offense” prompt “the most vehement disagreement among the Justices” (McKay, 1983, pp. 1–2). The Court has struggled to give meaning to these terms.

Difficulties arise in determining when a new prosecution is for the “same offense.” The issue is presented when the same criminal act or transaction violates two separate statutes. In Grady v. Corbin (1990), the Court explained that in such circumstances the critical inquiry should focus on the conduct the prosecution will attempt to prove in the second prosecution, not the evidence that it will use to prove that conduct. For example, if someone has an automobile accident and is convicted of driving while intoxicated, that person cannot then be prosecuted for criminally negligent homicide arising from the same accident if the state intends to use the drunk driving conviction to prove the homicide charge. On the other hand, the homicide prosecution will not be barred if the state uses other conduct (such as driving too fast) to prove the homicide charge.

The Court has also developed rather complicated rules to resolve the issue of whether a defendant has been “put twice in jeopardy.” The protection of the clause applies only in instances where jeopardy “has attached.” In a case tried by a judge rather than by a jury, jeopardy attaches after the first witness has been sworn to testify. In a case tried by a jury, jeopardy attaches after the jury has been empaneled. Finally, where a defendant enters a plea, jeopardy attaches when the court accepts the plea.

There are, however, a number of exceptions to these propositions. If the first prosecution resulted in a mistrial, a subsequent prosecution is permitted if the defendant consented to the mistrial or if there was “manifest necessity” for the mistrial. Manifest necessity would be found, for example, where a mistrial was declared because the indictment contained a defect that would have been a basis for reversing a conviction.

Similarly, a new prosecution is permitted if a conviction is reversed on appeal. If the defendant is then reconvicted, however, a higher sentence may be imposed at the second trial. A jury verdict of not guilty, however, may not be appealed by the prosecutor and bars a second prosecution. The rules are more complex when a judge, rather than a jury, decides the case. Generally, a dismissal or acquittal by a judge bars reprosecution for the same offense. However, if the dismissal was requested by the defendant and was for a reason that would prevent prosecution, the prosecutor may appeal. If the dismissal is reversed, the defendant may be prosecuted again.

Finally, double jeopardy does not prevent a separate sovereignty from prosecuting again for the same offense. In Heath v. Alabama (1985), the Supreme Court held that federal prosecution is not barred by a previous state prosecution for the same offense.

Commentators have argued that the continuing confusion surrounding double jeopardy results from the Court's failure to articulate the precise values served by the clause. At least five different values have been suggested: (1) preventing the government from using its superior resources to wear down an innocent defendant, (2) preserving the integrity of jury verdicts, (3) protecting the defendant's interest in finality, (4) limiting excessive prosecutorial discretion in charging individuals, and (5) preventing imposition of sentences not authorized by the legislature. A coherent, sound approach to double jeopardy will not be developed until the Court identifies the values embedded in the Double Jeopardy Clause.

Bibliography

Monroe McKay , Double Jeopardy: Are the Pieces the Puzzle? Washburn Journal 23 (1983): 1–23.

Daan Braveman