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Double Jeopardy

DOUBLE JEOPARDY

Ancient civilizations relied on the blood feud to provide justice when one person killed anotherthe relatives of a slain person had a duty to avenge the death. While the blood feud manifested a rough "eye-for-an-eye" retributive justice, it could, in theory, lead to an endless series of killings as each death was avenged. The Greek playwright Aeschylus dramatized a cycle of blood feud revenge in The Oresteian Trilogy, which ended with the Greek gods deciding that a trial is a better way to achieve justice. Part of the reason to replace the blood feud with a trial is to permit the cycle of revenge to end, to provide a final outcome to a dispute, and to create repose in the litigants. But to protect the finality of outcomes, there must exist a principle forbidding a retrial of the same case or the same issue.

A double jeopardy principle has been part of Western legal systems for thousands of years. The Code of Hammurabi, for example, in the nineteenth century B.C.E. sought to prohibit judges from changing judgments (law 15). The Greek philosopher Demosthenes said in 355 B.C.E. that the "laws forbid the same man to be tried twice on the same issue." In the Roman Republic, an acquittal could not be appealed. St. Jerome in A.D. 391 interpreted a passage from the Old Testament to mean that not even God judges twice for the same act.

The English common law principle that there should be one punishment for one crime first manifested itself during the confrontation between King Henry II and St. Thomas Becket that occurred between 1164 and 1170. Henry, the great-grandson of William the Conqueror, enacted a law that required punishment in the king's court of clergy who had already been punished in the church courts. In opposing this law, Becket relied on St. Jerome's principle forbidding more than one judgment for the same act. After four of Henry's knights killed Becket, the pope condemned Henry's provisions permitting the double punishment of clergy. Henry relented and today, over eight hundred years later, courts still condemn double punishment.

The evolution of double jeopardy law from the twelfth century to today cannot be easily summarized, but the great English commentator Sir William Blackstone could state confidently in 1765 that there was a "universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence." This "universal maxim" led directly to the Fifth Amendment double jeopardy clause, which is strikingly similar to Blackstone's statement of the common law maxim. The Fifth Amendment provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."

There are two difficult concepts embedded in the arcane language of the double jeopardy clause"same offense" and "twice in jeopardy." "Same offense" could be read literally to be the very same statutory offensefor example, the premeditated murder of V is the same offense as the premeditated murder of V but would not be the same offense as manslaughter of V even though manslaughter is a lesser form of homicide. From at least the seventeenth century, however, courts and commentators understood "same offense" in a broader way. Unfortunately, the precise outlines of this broader meaning have long been elusive. In part this is because "same offense" issues were not very troubling in Blackstone's day. The common law recognized a relatively small number of criminal offenses and, aside from homicide, the offense definitions rarely overlapped.

The "twice in jeopardy" issue was also easy in the eighteenth century. If a defendant was acquitted or convicted of murder, he could not again be tried for that murder. Unlike the eighteenth-century English system, modern criminal procedure permits the judge sometimes to dismiss cases before a verdict is renderedthe jury might not reach the required vote (almost all jurisdictions require unanimous verdicts in criminal cases), or the case might be dismissed during the trial for some reason. Errors that could justify dismissing the case after trial begins include the failure of the prosecution's key witness to appear, a remark made by the prosecutor or defense counsel that prejudices the jury, and a mistake made in the indictment that cannot be corrected. Most dismissals during a trial are called "mistrials."

Mistrials

In Blackstone's day, a verdict was required for the double jeopardy principle to operate, but this was probably because outcomes short of a verdict were virtually unknown. The current standard for deciding when a mistrial is equivalent to a verdict, drawn from the 1824 case of United States v. Perez, is whether the first trial ended because of "manifest necessity." If so, the first trial does not erect a double jeopardy bar to a second trial. If there was no "manifest necessity" to end the first trial, then a second one is a forbidden second jeopardy.

Three general principles can be drawn from the "manifest necessity" cases. First, if the defendant requests the mistrial and the judge grants it, this will almost always constitute manifest necessity for ending the first trial. This defendant can be retried. Second, if the judge decides that the jurors have been unfairly prejudicedfor example, by hearing something they should not have heardthe judge's decision to terminate the trial will almost always constitute manifest necessity. This defendant, too, can be retried. Third, if the first trial ends because the jury might have acquittedsuch as when the prosecution's chief witness did not appearthere is no manifest necessity. If the state fails to produce enough evidence at trial, the defendant is entitled to an acquittal. This defendant cannot be retried.

Other kinds of reasons can lead to a mistrialfor example, one judge granted a mistrial because his mother-in-law died unexpectedly. In these miscellaneous cases, courts balance the reason for the mistrial, including how carefully the judge considered other alternatives, against the unfairness of asking a defendant once again to defend the criminal charge. In the case where the trial judge's mother-in-law died suddenly, the appeals court held that there was no manifest necessity for the mistrial, in part because the judge did not consider asking another judge to take his place. The double jeopardy clause thus barred a second trial.

Multiple punishment

There is another "twice in jeopardy" issue, one that may sound odd to the ear. Is a defendant placed twice in jeopardy if he is tried only once but convicted of two offenses that are the same offense? Courts have long assumed that it is double jeopardy to convict a defendant twice of the same offense whether the convictions occur in one trial or two. If the rule were otherwise, the prosecutor could often circumvent the double jeopardy clause by trying both offenses in a single trial (a procedure that would not have been available to prosecutors in the eighteenth century).

The linguistic oddness of finding that a single trial can be double jeopardy may explain why courts have developed the terminology "multiple punishment" to explain what the double jeopardy clause forbids in a single trial. As the U.S. Supreme Court has stated on numerous occasions, the clause offers three protections in addition to the "manifest necessity" principleit "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense" (Brown v. Ohio ).

Using this three-part description of double jeopardy protection, one way to understand the double jeopardy clause is that it constrains judges and prosecutors. If the prosecutor brings more than one charge for the same offense in a single trial, the judge can enter but one conviction. If the prosecutor follows a conviction or acquittal with another charge for the same offense, the judge is obligated to dismiss the second charge. The Supreme Court put the matter this way in Brown v. Ohio, one of its most important double jeopardy cases:

[T]he Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.

The multiple punishment issue sometimes arises when the legislature has ordered consecutive sentences for violations of more than one criminal statute. For example, a Missouri statute created an offense of "armed criminal action" to punish the use of a dangerous weapon to commit a felony. This statute stated that any sentence imposed under it "shall be in addition" to the punishment for the felony that was committed using the dangerous weapon. Is this explicit indication of legislative intent significant in deciding whether the consecutive sentences are multiple punishment? Yes, the Court held in Missouri v. Hunter. The presence of clear legislative intent to punish offenses consecutively means that consecutive sentences are not multiple punishments within the meaning of the double jeopardy clause regardless of how much the offense definitions overlap.

Second prosecution after conviction

The prosecutor can bring a second prosecution after a conviction unless the charges are for the "same" double jeopardy offense. Same offense issues arise when multiple criminal violations occur during a single criminal "transaction." For example, R uses a knife to rob V. When another person, V 2, attempts to prevent the robbery, R pulls a gun and threatens V 2 with the gun, then also robs him. This defendant might have committed four criminal offensesrobbery of V 1, robbery of V 2, assault on V 2 (based on the threat with the gun), and the offense of carrying a gun without a license. A prosecutor who wanted to charge all four offenses must know whether any of them are the same offense for purposes of double jeopardy.

This issue has caused the Supreme Court considerable trouble and is still at least partly unresolved. Since the time of Blackstone, it has been accepted wisdom that two different offenses are the "same" if one is necessarily included in the otherif proving the greater always proves the lesser. To use Blackstone's example, a conviction of manslaughter bars a later trial for murder because manslaughter is a necessarily included offense of murder. Applying this principle, the Supreme Court held in Brown v. Ohio that auto theft is the same offense as joyriding because proving auto theft (taking a car without permission and with intent to steal) always proves joyriding (taking a car without permission). The theory here is that a lesser included offense is simply a species of the greater offense.

Some commentators have criticized this principle on the ground that the defendant who is first prosecuted for the lesser offense is never in jeopardy for the additional culpability manifested in the greater offense (the intent to steal, for example, required for auto theft but not for joyriding). The Court's rationale seems to be that the prosecutor can choose to try the greater offense first. If, instead, the prosecutor chooses to try the lesser, the state is stuck with that choice.

Blackstone's lesser-included offense understanding of "same offense" worked well for two hundred years. In 1889, the Supreme Court applied a version of Blackstone's test in In re Nielsen and first clearly relied on the lesser-offense test in the 1932 case of Blockburger v. United States. The test is known today as the Blockburger test and is usually stated as follows: when the same criminal conduct violates more than one statute, offenses are different if each requires proof of an element that the other does not. If each requires proof of an element the other does not, then neither can be included within the other.

The Blockburger test answers the earlier robbery example. Robbery of V 1 is not the same offense as robbery of V 2 because the two robberies are based on different conduct. R could have stopped after robbing V 1; when R does not stop, he has committed two robberies. On the facts of the hypothetical case, robbery is based on the same conduct as carrying a gun without a license, but these offenses are not the same offense because robbery does not require the use of a gun. But the threat of the gun that constituted assault on V 2 is the same offense as robbery of V 2 because robbery does require proof of force or threat of force.

Although the test is both relatively easy to apply and grounded in Blackstone's wisdom, changes in U.S. criminal law have created difficulties for the Blockburger test. Today there are many overlapping, complex criminal offenses, and the same conduct will often violate two, three, four, or more criminal statutes. Modern statutes tend to be complex, and many require distinct elements. As early as 1958, well before the various "wars" on drugs, a single sale of narcotics violated nine different federal statues, each of which required an element that the others did notfor example, sale not in the original package, sale without a prescription, and sale knowing of unlawful importation. In Gore v. United States, the Court held that these three narcotics offenses could be punished consecutively. What remained unclear after Gore was whether separate trials could be based on a single sale of narcotics.

Reacting against the unfairness of multiple trials based on the same conduct, the Supreme Court in the 1970s began to suggest that there might be a greater protection against successive prosecutions than against multiple punishment in a single trial. The Blockburger test, the Court seemed to say, told us how many punishments were permitted but not how many trials. In 1990 in Grady v. Corbin, the Court held that successive prosecutions required a "same conduct" understanding of "same offense." In addition to the Blockburger inquiry that focused on offense definitions, Grady read the double jeopardy clause to forbid a trial for any criminal charge that required proof of "conduct that constitutes an offense" of which the defendant had already been convicted. For example, manslaughter by auto would be the same offense as drunk driving if the defendant had already been convicted of drunk driving and the manslaughter required proof of the same drunk driving.

The rule proved difficult to apply and, perhaps more importantly, was difficult to justify. As Justice Antonin Scalia sarcastically asked in his dissent in Grady, how could the double jeopardy clause words "same offense" mean one thing when there was a single trial and something very different when successive prosecutions were involved? The Court abandoned the "same conduct" definition of same offense in United States v. Dixon, decided only three years after Grady. In Dixon, the Court held that there is only one definition of same offensethe Blockburger lesserincluded offense definition. If the criminal statutes themselves do not define the same offense when the elements are compared, it does not matter how often the same conduct is reprosecuted. Drunk driving would not be the same offense as manslaughter by auto if the latter offense could be proved by other kinds of reckless behavior even if drunk driving was the reckless conduct that killed the victim in the case being prosecuted.

Dixon did not solve all the same offense problems, however. For one thing, the five Justices who voted to overrule Grady disagreed among themselves about how to apply Blockburger to the complex statutes in Dixon. For another, there might still be a "same offense" difference between multiple punishments in a single trial and a second trial after conviction. Recall the Missouri v. Hunter rule that a specific legislative requirement of consecutive sentences made the punishments not multiple. But this does not necessarily solve the problem of multiple trials. One way to frame the question is whether the legislature can, by simply stating its intent to create separate offenses, make offenses not the "same" for purposes of successive prosecutions as well as for the multiple punishment doctrine. If, as the Court suggested in Brown, the legislature is free to "define crimes and fix punishments," perhaps the legislature can create separate offenses under the double jeopardy clause by simply stating its intent to do so.

But the Court has never suggested that the multiple punishment principle from Missouri v. Hunter would extend into the successive prosecution context. Indeed, one member of the current Court, Justice Scalia, has argued just the oppositethat the multiple punishment doctrine is analytically separate from the successive prosecution doctrine. In the single trial context, the argument goes, the legislature can rebut the result of the Blockburger test because the rebuttal merely makes clear how many penalties the legislature intended to authorize, but the double jeopardy clause forbids the legislature to authorize more than one trial for the same offense as defined by the Blockburger test. This issue remains unresolved.

Second prosecution after acquittal

When the first trial ends in an acquittal, there can be no second prosecution for the same offense. In this way, acquittal and conviction provide the same double jeopardy bar. But the Court has expanded the role of the double jeopardy clause to protect acquittals even when the offenses are not the same offense. In Ashe v. Swenson, masked men robbed five poker players. When the prosecutor tried Ashe for robbing one of the players, the evidence that Ashe was one of the robbers was weak, and the jury found Ashe not guilty of that robbery. The prosecutor then tried Ashe for robbing another player. This time the eyewitnesses seemed more certain that one of the masked men was Ashe; the eyewitness who was least certain at the first trial was not called to testify. Ashe was convicted of this robbery.

The same offense rule is that different conduct gives rise to different offenses. Robbery of one victim is never the same offense as robbery of a second. Thus, Ashe could get no help from the same offense doctrine. If he had been convicted of robbing the first poker player, he could have been tried later for robbing the second one.

But the acquittal provided a broader ban against a second trial. The Court noted that the only issue in the first trial was whether Ashe was one of the masked men, which the first jury determined in Ashe's favor. The Court held that the state could not force Ashe to defend that issue again. To permit the state to bring a prosecution for a different victim would, in effect, permit the second jury to overrule the first. It would also encourage prosecutors to structure later cases to hide evidence that turned out to be favorable to the defendant in the first trial. Forcing a defendant repeatedly to defend the same basic issue, while the state's case gets better and better, can only increase the likelihood that innocent defendants will be convicted.

Appeals

Just as was true in the Roman Republic, a conviction today can be appealed and reversed, but an acquittal is final and cannot be appealed. As with the Ashe principle discussed in the last section, one justification is that appeal of an acquittal creates too much risk that an innocent defendant will be worn down by the superior resources of the state. A justification from outside the double jeopardy clause is that permitting an appellate court to reverse a jury's acquittal would violate the Sixth Amendment right to trial by jury (this justification does not explain why acquittals by judges are also non-appealable).

While the jury should have the final say in deciding the facts that underlie an acquittal, the bar of prosecution appeal seems less persuasive when the trial judge has made an error that keeps some important fact from the jury. Suppose the trial judge suppressed a confession that was clearly admissible. The jury's acquittal in this situation is based on incomplete information. In 1937 the Supreme Court in Palko v. Connecticut upheld the constitutionality of a state process that permitted the prosecution to obtain a new trial by appealing an acquittal infected by legal errors. The doctrinal framework of Palko was rejected in 1969 in Benton v. Maryland, however, and most commentators believe that the double jeopardy clause does not permit a prosecution appeal even on the ground of legal error.

Appeals are therefore tilted in favor of the defendant. A guilty verdict can be appealed and reversed, but an acquittal, even if clearly wrong, can never be reversed on factual grounds and probably not on any other ground. This is perhaps a fair price to pay to ensure that innocent defendants are not convicted after repeated trials and appeals.

Lower courts

Thousands of lower court cases have applied the Blockburger lesser-included offense test to federal offenses and to offenses from all fifty states. Assault with intent to murder, for example, is a different offense from assault with a dangerous weapon (each requires proof of an element that the other does not). Burglary, which requires entry into a structure, is a different offense from larceny committed inside the structure (one can commit burglary without committing larceny and vice versa). But larceny is the same offense as grand larceny (larceny of property over a certain value), and assault is the same offense as assault with intent to rape or assault with intent to murder.

Lower courts generally recognize that Blockburger is just a presumption when applied to multiple punishment in a single trial. For example, Blockburger often pronounces different kinds of homicide offenses to be different double jeopardy offenses. The offense of homicide by auto is not the same Blockburger offense as intentional murder. The latter requires proof of intent to kill while the former requires proof that the killing was done by auto. Blockburger thus permits two homicide convictions for one killing (an intentional killing by means of an auto). Perhaps, however, the number of homicide offenses is better correlated with the number of victims than the number of superficially distinct statutes.

Dozens of lower courts have wrestled with this issue. Most have concluded, by one means or another, that the legislature did not intend to authorize two homicide convictions for killing a single victim. These courts thus use actual legislative intent to rebut the presumption about intent that is created by Blockburger.

Dual sovereignty

Although "dual sovereignty" is really a variation of the same offense issue, it is usually treated separately. Suppose the federal Congress and a state legislature have identical criminal statutes. Can a defendant be charged and convicted (or acquitted) of an offense in federal court and then tried in state court? What if the defendant is first tried in state court? This issue is called "dual sovereignty" because the original thirteen states were separate political entities until they joined the federal union and gave up some of their sovereignty to the federal government. The states did not give up their right to define and punish crimes.

This issue, and its dual sovereignty implication, was recognized by the Supreme Court in the 1820 case of Houston v. Moore, but it has only been in the last few decades that the issue affected very many defendants. Congress initially did not create many criminal offenses and there was little overlap between federal and state criminal law. But there has been an explosion of federal criminal law in the last twenty years, and many defendants now potentially face successive state and federal prosecutions.

When the issue was first noted in Houston, the various opinions of the Supreme Court laid out the two basic approaches to the problem. Justice Joseph Story argued that it would violate double jeopardy for both sovereigns to prosecute the same offense, which he took to mean the same criminal conduct. Justice William Johnson saw the matter differentlyit was not a question of prosecuting the same conduct but the same offense. Because each U.S. citizen owes allegiance to two sovereigns, the same conduct that violates state and federal criminal law was two offenses, in Johnson's view, not one.

Johnson's view ultimately prevailed. It is not double jeopardy for a defendant to be acquitted of federal bank robbery charges and then tried and convicted in state court for the same bank robbery. Nor is it double jeopardy for a defendant to be convicted in state court and then convicted in federal court. These cases drew a stinging dissent in Bartkus v. Illinois from Justice Hugo Black, who wrote: "If double punishment is what is feared, it hurts just as much for two 'Sovereigns' to inflict it than for one. If danger to the innocent is emphasized, that danger is surely no less" when the successive trials are brought by different sovereigns.

The dual sovereignty doctrine is controversial, but there are not very many instances of successive state and federal prosecutions. Both the federal and state governments have imposed limits on their ability to re-prosecute the same conduct. The federal limit is found in a Department of Justice policy that generally forbids prosecuting conduct that has already been prosecuted. There are exceptions for cases in which justice was not done in the prior prosecutionfor example, the judge or prosecutor was corrupt or the jury entered an acquittal that was clearly against the evidence. More than half the states have enacted statutes that generally forbid a state prosecution to be based on the same conduct as an earlier federal prosecution. Although there is much to commend in Justice Black's rejection of the dual sovereignty doctrine, the federal and state systems have adjusted to minimize the potential harm.

George C. Thomas, III

See also Adversary System; Appeal; Criminal Procedure: Constitutional Aspects; Trial, Criminal.

BIBLIOGRAPHY

Amar, Akil Reed. "Double Jeopardy Law Made Simple." Yale Law Journal 106 (April 1997): 18071848.

Blackstone, William. Commentaries on the Laws of England (1765), vol. 4. Chicago: University of Chicago Press, 1979.

Cassell, Paul G. "The Rodney King Trial and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU's Schizophrenic Views of the Dual Sovereignty Doctrine." UCLA Law Review 41 (February 1994): 693720.

Friedland, Martin L. Double Jeopardy. Oxford, U.K.: Clarendon Press, 1969.

Guerra, Sandra. "The Myth of Dual Sovereignty: Multijurisdictional Drug Law Enforcement and Double Jeopardy." North Carolina Law Review 73 (March 1995): 11591210.

Herman, Susan N. "Double Jeopardy All Over Again: Dual Sovereignty, Rodney King, and the ACLU." UCLA Law Review 41 (February 1994): 609647.

King, Nancy J. "Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties." University of Pennsylvania Law Review 144 (November 1995): 101196.

Kirchheimer, Otto. "The Act, the Offense and Double Jeopardy." Yale Law Journal 58 (March 1949): 513544.

Moore, Michael S. Act and Crime. Oxford, U.K.: Clarendon Press, 1993.

Poulin, Anne Bowen. "Collateral Estoppel in Criminal Cases: Reuse of Evidence after Acquittal." University of Cincinnati Law Review 58, no. 1 (1989): 157.

. "Double Jeopardy: Grady and Dowling Stir the Muddy Waters." Rutgers Law Review 43 (summer 1991): 889931.

Rudstein, David S. "Double Jeopardy and the Fraudulently-Obtained Acquittal." Missouri Law Review 60 (summer 1995): 607651.

Schulhofer, Stephen J. "Jeopardy and Mistrials." University of Pennsylvania Law Review 125 ( January 1977): 449539.

Sigler, Jay A. Double Jeopardy: The Development of a Legal and Social Policy. Ithaca, N.Y.: Cornell University Press, 1969.

Shellenberger, James A., and Strazzella, James A. "The Lesser-Included Offense Doctrine and the Constitution: The Development of Due Process and Double Jeopardy Remedies." Marquette Law Review 79 (fall 1995): 1193.

Strazzella, James A. "The Relationship of Double Jeopardy to Prosecution Appeals." Notre Dame Law Review 73 (November 1997): 130.

Thomas, George C., III. "Sentencing Problems Under the Multiple Punishment Doctrine." Villanova Law Review 31 (September 1986): 13511428.

. Double Jeopardy: The History, the Law. New York: New York University Press, 1998.

"Twice in Jeopardy." Yale Law Journal 75 (December 1965): 262321.

Westen, Peter. "The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences." Michigan Law Review 78 (June 1980): 10011065.

Westen, Peter, and Drubel, Richard. "Toward a General Theory of Double Jeopardy." Supreme Court Review (1978): 81169.

CASES

Ashe v. Swenson, 397 U.S. 436 (1970).

Bartkus v. Illinois, 359 U.S. 121 (1959).

Benton v. Maryland, 395 U.S. 784 (1969).

Blockburger v. United States, 284 U.S. 299 (1932).

Brown v. Ohio, 432 U.S. 161 (1977).

Gore v. United States, 357 U.S. 386 (1958).

Grady v. Corbin, 495 U.S. 508 (1990).

Houston v. Moore, 5 Wheat. 1 (1820).

In re Nielsen, 131 U.S. 176 (1889).

Missouri v. Hunter, 459 U.S. 359 (1983).

Palko v. Connecticut, 302 U.S. 319 (1937).

United States v. Dixon, 509 U.S. 688 (1993).

United States v. Perez, 22 U.S. 579 (1824).

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Double Jeopardy

DOUBLE JEOPARDY

A second prosecution for the same offense after acquittal or conviction or multiple punishments for same offense. The evil sought to be avoided by prohibiting double jeopardy is double trial and double conviction, not necessarily double punishment.

The fifth amendment to the U.S. Constitution provides, "No person shall … be subject for the same offence [sic] to be twice put in jeopardy of life or limb." This provision, known as the Double Jeopardy Clause, prohibits state and federal governments from prosecuting individuals for the same crime on more than one occasion, or imposing more than one punishment for a single offense. Each of the 50 states offers similar protection through its own constitution, statutes, and common law.

Five policy considerations underpin the double jeopardy doctrine: (1) preventing the government from employing its superior resources to wear down and erroneously convict innocent persons; (2) protecting individuals from the financial, emotional, and social consequences of successive prosecutions; (3) preserving the finality and integrity of criminal proceedings, which would be compromised were the state allowed to arbitrarily ignore unsatisfactory outcomes; (4) restricting prosecutorial discretion over the charging process; and (5) eliminating judicial discretion to impose cumulative punishments that the legislature has not authorized.

Double jeopardy is one of the oldest legal concepts in Western civilization. In 355 b.c., Athenian statesman Demosthenes said, "[T]he law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest of justinian i in a.d. 533. The principle also survived the Dark Ages (a.d. 400–1066), notwithstanding the deterioration of other Greco-Roman legal traditions, through canon law and the teachings of early Christian writers.

In England, the protection against double jeopardy was considered "a universal maxim of the common law" (United States v. Wilson, 420 U.S. 332, 340, 95 S. Ct. 1013, 1020, 43 L. Ed. 2d 232 [1975]) and was embraced by eminent jurists henry de bracton (1250), sir edward coke (1628), Sir Matthew Hale (1736), and sir william blackstone (1769). Nonetheless, the English double jeopardy doctrine was extremely narrow. It applied only to defendants who were accused of capital felonies, and only after conviction or acquittal. It did not apply to cases that had been dismissed prior to final judgment, and it was not immune from flagrant abuse by the Crown.

The American colonists, who were intimately familiar with Coke, Blackstone, and the machinations of the Crown, expanded the protection against double jeopardy, making it applicable to all crimes. Yet some perceived James Madison's original draft of the Double Jeopardy Clause as being too broad. It provided, "No person shall be subject … to more than one punishment or one trial for the same offense" (emphasis added) (United States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1897 104 L. Ed. 2d 487 [1989]). Several House members objected to this wording, arguing that it could be misconstrued to prevent defendants from seeking a second trial on appeal following conviction. Although the Senate later amended the language to address this concern, the final version ratified by the states left other questions for judicial interpretation.

Double jeopardy litigation revolves around four central questions: (1) In what type of legal proceeding does double jeopardy protection apply? (2) When does jeopardy begin, or, in legal parlance, attach? (3) When does jeopardy terminate? (4) What constitutes successive prosecutions or punishments for the same offense? Although courts have answered the second and third questions with some clarity, they continued to struggle over the first and last.

Where Jeopardy Applies

Only certain types of legal proceedings invoke double jeopardy protection. If a particular proceeding does not place an individual in jeopardy, then subsequent proceedings against the same individual for the same conduct are not prohibited. The Fifth Amendment suggests that the protection against double jeopardy extends only to proceedings that threaten "life or limb." Nevertheless, the U.S. Supreme Court has established that the right against double jeopardy is not limited to capital crimes or corporal punishment, but that it extends to all felonies, misdemeanors, and juvenile-delinquency adjudications, regardless of the applicable punishments.

In Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), the U.S. Supreme Court ruled that the federal Double Jeopardy Clause is applicable to state and federal prosecutions. Prior to this ruling, an individual who was accused of violating state law could rely only on that particular state's protection against double jeopardy. Some states offered greater protection against double jeopardy than did others. The Court, relying on the doctrine of incorporation, which makes fundamental principles in the bill of rights applicable to the states through the equal protection clause of the fourteenth amendment, said this was not permissible. The right against double jeopardy is so important, the Court concluded, that it must be equally conferred upon the citizens of every state. Under Benton, no state may provide its residents with less protection against double jeopardy than that offered by the federal Constitution.

The U.S. Supreme Court has also held that the right against double jeopardy precludes only subsequent criminal proceedings. It does not preclude ordinary civil or administrative proceedings against a person who already has been prosecuted for the same act or omission. Nor is prosecution barred by double jeopardy if it is preceded by a final civil or administrative determination on the same issue.

Courts have drawn the distinction between criminal proceedings on the one hand, and civil or administrative proceedings on the other, based on the different purposes served by each. Criminal proceedings are punitive in nature and serve two primary purposes: deterrence and retribution. Civil proceedings are more remedial; their fundamental purpose is to compensate injured persons for any losses incurred. Because civil and criminal remedies fulfill different objectives, a government may provide both for the same offense.

The multiple legal proceedings brought against O. J. (Orenthal James) Simpson in the death of Nicole Brown Simpson and Ronald Lyle Goldman illustrate these various objectives. The state of California prosecuted Simpson for the murders of his former wife and her friend. Despite Simpson's acquittal in the criminal case, three civil suits were filed against him by the families of the two victims. The criminal proceedings were instituted with the purpose of punishing Simpson, incarcerating him, and deterring others from similar behavior. The civil suits were intended to make the victims' families whole by compensating them with money damages for the losses they had suffered.

The distinctions between criminal and civil proceedings and between punitive and remedial remedies may appear semantic, but they raise real legal issues. Courts have recognized that civil remedies may advance punitive goals. When they do, double jeopardy questions surface. For example, a civil forfeiture or civil fine, although characterized by the legislature as remedial, becomes punitive when the value of the property seized or the amount of the fine imposed is "overwhelmingly disproportionate" to society's loss (Halper). This principle was exemplified when the U.S. Supreme Court prohibited the federal government from seeking a $130,000 civil penalty against a man who previously had been sentenced to prison for the same offense of filing $585 worth of false medicare claims (Halper). The Court concluded that the gross disparity between the fine imposed and society's economic loss reflected a punitive remedial aim.

Conversely, many courts have ruled that punitive damages awarded in civil suits are not sufficiently criminal for double jeopardy purposes when the plaintiff seeking those damages is a private party, not the state. This ruling can be best explained by noting that the Bill of Rights guarantees protection only against government action. It does not create a system of rights and remedies for disputes between private citizens, as do the laws of contracts and torts. Courts have not determined whether punitive damages recovered by the government in a civil suit would bar subsequent prosecution, nor have they agreed whether a number of administrative proceedings can be uniformly characterized as punitive or remedial. Cases involving the revocation of professional licenses, driving privileges, probation, and parole have divided courts over the purposes underlying these proceedings.

When Jeopardy Attaches

Courts have provided much clearer guidance on the question of when jeopardy attaches, or begins. This question is crucial to answer because any action taken by the government before jeopardy attaches, such as dismissal of the indictment, will not prevent later proceedings against a person for the same offense. Once jeopardy has attached, the full panoply of protection against multiple prosecutions and punishments takes hold.

The U.S. Supreme Court has held that jeopardy attaches during a jury trial when the jury is empanelled. In criminal cases tried by a judge without a jury, jeopardy attaches when the first witness is sworn. Jeopardy begins in juvenile-delinquency adjudications when the court first hears evidence. If the defendant or juvenile enters a plea agreement with the prosecution, jeopardy does not attach until the court accepts the plea.

When Jeopardy Terminates

Determining when jeopardy terminates is no less important, but somewhat more complicated. Once jeopardy has terminated, the government may not hail someone into court for additional proceedings on the same matter without raising double jeopardy questions. If jeopardy does not terminate at the conclusion of one proceeding, it is said to be continue, and further criminal proceedings are permitted. Jeopardy can terminate in four instances: after acquittal; after dismissal; after a mistrial; and on appeal after conviction.

A jury's verdict of acquittal terminates jeopardy, and it may not be overturned on appeal even if it is contrary to overwhelming proof of a defendant's guilt and derived from a trial that was rife with reversible error. This elemental maxim of double jeopardy jurisprudence entrusts the jury with the power to nullify criminal prosecutions that are tainted by egregious police, prosecutorial, or judicial misconduct.

A jury also may impliedly acquit a defendant. If a jury has been instructed by the judge on the elements of a particular crime and a lesser included offense, and the jury returns a guilty verdict as to the lesser offense but is silent as to the greater one, then reprosecution for the greater offense is barred by the Double Jeopardy Clause. For example, a jury that has been instructed as to the crimes of first- and second-degree murder may impliedly acquit the defendant of first-degree murder by returning only a guilty verdict as to murder in the second degree. A not-guilty verdict as to the greater offense is inferred from the silence.

A dismissal is granted by the trial court for errors and defects that operate as an absolute barrier to prosecution. It may be entered before a jury has been impaneled, during the trial, or after a conviction. But jeopardy must attach before a dismissal implicates double jeopardy protection.

Once jeopardy attaches, a dismissal granted by the court for insufficient evidence terminates it. Such a dismissal also bars further prosecution, with one exception: The prosecution may appeal a dismissal entered after the jury has returned a guilty verdict. If the appellate court reverses the dismissal, the guilty verdict may be reinstated without necessitating a second trial. The state may not appeal a dismissal granted for lack of evidence after a case has been submitted to a jury, but before a verdict has been reached.

Reprosecution is permitted, and jeopardy continues, when the court dismisses the case on a motion by the defendant for reasons other than sufficiency of the evidence. For example, a court may dismiss a case when the defendant's right to a speedy trial has been denied by prosecutorial pretrial delay. The U.S. Supreme Court has held that no double jeopardy issue is triggered when defendants obtain dismissal for reasons that are unrelated to their guilt or innocence (see United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 [1978]).

A mistrial is granted when it has become impracticable or impossible to finish a case. Courts typically declare a mistrial when jurors fail to reach a unanimous verdict. Like a dismissal, a mistrial that is declared at the defendant's behest will not terminate jeopardy or bar reprosecution. Nor will a mistrial preclude reprosecution when declared with the defendant's consent. Courts disagree as to whether a defendant's mere silence is tantamount to consent.

A different situation is presented when a mistrial is declared over the defendant's objection. Reprosecution is then allowed only if the mistrial resulted from "manifest necessity," a standard that is more rigorous than "reasonable necessity," and less exacting than "absolute necessity." A mistrial that could have been reasonably avoided terminates jeopardy, but jeopardy continues if a mistrial was unavoidable.

The manifest-necessity standard has been satisfied where mistrials have resulted from defective indictments, disqualified or deadlocked jurors, and procedural irregularities willfully occasioned by the defendant. Manifest necessity is never established for mistrials resulting from prosecutorial or judicial manipulation. In determining manifest necessity, courts balance the defendant's interest in finality against society's interest in a fair and just legal system.

Every defendant has the right to appeal a conviction. If the conviction is reversed on appeal for insufficient evidence, the reversal is treated as an acquittal, and further prosecution is not permitted. However, the defendant may be reprosecuted when the reversal is not based on a lack of evidence. The grounds for such a reversal include defective search warrants, unlawful seizure of evidence, and other so-called technicalities. Retrials in these instances are justified by society's interest in punishing the guilty. A defendant's countervailing interests are subordinated when a jury's verdict is overturned for reasons that are unrelated to guilt or innocence.

The interests of accused individuals are also subordinated when courts permit prosecutors to seek a more severe sentence during the retrial of a defendant whose original conviction was reversed on appeal. Courts have suggested that defendants who appeal their convictions assume the risk that a harsher sentence will be imposed during reprosecution. However, in most circumstances, courts are not permitted to impose a death sentence on a defendant during a second trial when the jury recommended life in prison during the first. The recommendation of life imprisonment is construed as an acquittal on the issue of capital punishment.

What Constitutes the Same Offense

The final question that courts must resolve in double jeopardy litigation is whether successive prosecutions or punishments are geared toward the same offense. Jeopardy may already have attached and terminated in a prior criminal proceeding, but the state may bring further criminal action against a person so long as it is not for the same offense. Courts have analyzed this question in several ways, depending on whether the state is attempting to reprosecute a defendant or to impose multiple punishments.

At common law, a single episode of criminal behavior produced only one prosecution, no matter how many wrongful acts were committed during that episode. Under current law, a proliferation of overlapping and related offenses may be prosecuted as separate crimes stemming from the same set of circumstances. For example, an individual who has stolen a car to facilitate an abduction resulting in attempted rape could be separately prosecuted and punished for auto theft, kidnapping, and molestation. This development has significantly enlarged prosecutors' discretion over the charging process.

The U.S. Supreme Court curbed this discretion in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), in which it wrote that the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact that the other offenses do not require. Blockburger requires courts to examine the elements of each offense as they are delineated by statute, without regard to the actual evidence that will be introduced at trial. The prosecution has the burden of demonstrating that within a pair or group of offenses, each has at least one mutually exclusive element. If any one offense is wholly subsumed by another, such as a lesser included offense, the two offenses are deemed to be the same, and punishment is allowed for only one.

Blockburger is the exclusive means by which courts determine whether cumulative punishments pass muster under the Double Jeopardy Clause. But courts have used several other methods to determine whether successive prosecutions apply the same offense. collateral estoppel, which prevents the same parties from relitigating ultimate factual issues previously determined by a valid and final judgment, is one such method. In Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), the U.S. Supreme Court collaterally estopped the government from prosecuting an individual for robbing one of six men during a poker game. A jury had already acquitted the defendant of robbing one of the other players. Although the second prosecution would have been permitted under Blockburger because two different victims were involved, it was disallowed because the defendant had already been declared not guilty of essentially the same crime.

The "same-transaction" analysis, which many state courts use to bar successive prosecutions, requires the prosecution to join all offenses that were committed during a continuous interval and that both share a common factual basis and display a single goal or intent. Although Justices william j. brennan jr., william o. douglas, and thurgood marshall endorsed the same-transaction test, no federal court has ever adopted it.

State and federal courts have employed the "actual-evidence" test in order to preclude successive prosecutions for the same offense. Unlike Blockburger, which demands that courts examine the statutory elements of proof, the actual-evidence test requires courts to compare the evidence that actually has been introduced during the first trial with the evidence that the prosecution seeks to introduce at the second one. The offenses are considered to be same when the evidence that is necessary to support a conviction for one offense would be sufficient to support a conviction for the other.

Under the "same-conduct" analysis, the government is forbidden to prosecute an individual twice for the same criminal behavior, regardless of the actual evidence introduced during trial or the statutory elements of the offense. In Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), the U.S. Supreme Court applied this analysis to prevent a prosecution for a vehicular homicide that resulted from drunk driving, when he earlier

had been convicted of driving while under the influence of alcohol. The second prosecution would have been permitted had the state been able to prove the driver's negligence without proof of his intoxication. Although Grady was abandoned by the Supreme Court three years later, the same-conduct analysis is still used by state courts when they interpret their own constitutions and statutes.

The dual-sovereignty doctrine received national attention during the early 1990s, when two Los Angeles police officers were convicted in federal court for violating the civil rights of rodney king during a brutal, videotaped beating, even though they previously had been acquitted in state court for excessive use of force (United States v. Koon, 833 F. Supp. 769 (C.D. Cal. 1993), aff'd, 34 F.3d 1416 (9th Cir. 1994), rehearing denied 45 F.3d 1303). Although many observers believed that the officers had been tried twice for the same offense, the convictions were upheld on appeal over double jeopardy objections. Under the dual-sovereignty doctrine, the appellate court ruled, a defendant who violates the laws of two sovereigns, even if by a single act, has committed two distinct offenses, punishable by both authorities.

The dual-sovereignty doctrine is designed to vindicate the interest that each sovereign claims in promoting peace and dignity within its forum, and permits state and federal governments to prosecute someone for the same behavior after either has already done so. A defendant also may be prosecuted successively by two states for the same act or omission. In Heath v. Alabama, 474 U.S. 82, 106 S. Ct. 433, 88 L. Ed. 2d 387 (1985), the U.S. Supreme Court held that successive prosecutions by the states of Georgia and Alabama based upon the same offense did not violate the Double Jeopardy Clause. In Heath, the defendant had committed murder in the state of Alabama but had taken the body to Georgia, where Georgia officials eventually found it. Both states prosecuted Heath and convicted him of murder for the same action, and the U.S. Supreme Court allowed the convictions to stand.

Some limitations apply to the dual-sovereignty doctrine. Successive prosecutions by a state and one of its political subdivisions (such as a county, city, or village) are not permitted, because these entities are deemed to be one sovereign. Moreover, federal and state authorities may not achieve a second prosecution by manipulating the criminal justice system, sometimes called a "sham prosecution." Although this exception to the dual sovereignty doctrine has been cited in several cases, it is seldom invoked.

The U.S. department of justice has developed an internal restriction on pursuing a prosecution after state prosecution has failed. Federal prosecutors under this restriction may only pursue a second prosecution for compelling reasons, and the prosecutor must obtain prior approval from the assistant attorney general prior to bringing the prosecution. This restriction is called the "Petite policy," named after the U.S. Supreme Court's decision in Petite v. United States, 361 U.S. 529, 80 S. Ct. 45, 4 L. Ed. 2d 490 (1960), which involved the prosecution of an individual in two federal district courts for what amounted to the same offense. Although the Petite policy appears in the Department of Justice's manual, criminal defendants may not rely upon this restriction if a federal prosecutor fails to adhere to the department's guidelines.

further readings

"Constitutional Law—Goodbye Grady! Blockburger Wins the Double Jeopardy Rematch: United States v. Dixon." 1994. University of Arkansas at Little Rock Law Journal 17.

"Continuing Criminal Enterprise, Conspiracy, and the Multiple Punishment Doctrine." 1993. Michigan Law Review 91.

Henning, Peter J. 1993. "Precedents in a Vacuum: The Supreme Court Continues to Tinker with Double Jeopardy." American Criminal Law Review 31.

Hoffman, Paul. 1994. "Double Jeopardy Wars: The Case for a Civil Rights Exception." UCLA Law Review 1.

"Increased Double Jeopardy Protection for the Criminal Defendant: Grady v. Corbin." 1991. Willamette Law Review 27.

Kotler, Bradley E., Brian J. Leske, and Benjamin Lieber. 1994. "Double Jeopardy." Georgetown Law Review 82.

LaFave, Wayne R., and Jerold H. Israel. 1985. Criminal Procedure (student ed.). St. Paul, Minn.: West Publishing.

McAninch, William S. 1993. "Unfolding the Law of Double Jeopardy." South Carolina Law Review 44.

Richardson, Eli J. 1994. "Eliminating Double-Talk from the Law of Double Jeopardy." Florida State University Law Review 22.

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double jeopardy

double jeopardy: see jeopardy.

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