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Acquittal by Jury.—Little or no controversy accompanies the rule that once a jury has acquitted a defendant, government may not, through appeal of the verdict or institution of a new prosecution, place the defendant on trial again.

Supplement: [P. 1290, add footnote to end of first sentence in section:]

What constitutes a jury acquittal may occasionally be uncertain. In Schiro v. Farley, 510 U.S. 222 (1994) , the Court ruled that a jury’s action in leaving the verdict sheet blank on all but one count did not amount to an acquittal on those counts, and that consequently conviction on the remaining count, alleged to be duplicative of one of the blank counts, could not constitute double jeopardy. In any event, the Court added, no successive prosecution violative of double jeopardy could result from an initial sentencing proceeding in the course of an initial prosecution.

Thus, the Court early held that, when the results of a trial are set aside because the first indictment was invalid or for some reason the trial’s results were voidable, a judgment of acquittal must nevertheless remain undisturbed.98

Acquittal by the Trial Judge.—Similarly, when a trial judge acquits a defendant, that action concludes the matter.99 There is no possibility of retrial for the same offense.100 But it may be difficult at times to determine whether the trial judge’s action was in fact an acquittal or was a dismissal or some other action which the prosecution may be able to appeal. The question is “whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.”101 Thus, an appeal by the Government was held barred in a case in which the deadlocked jury had been discharged, and the trial judge had granted the defendant’s motion for a judgment of acquittal under the appropriate federal rule, explicitly based on the judgment that the Government had not proved facts[p.1291]constituting the offense.102 Even if, as happened in Sanabria v. United States,103 the trial judge erroneously excludes evidence and then acquits on the basis that the remaining evidence is insufficient to convict, the judgment of acquittal produced thereby is final and unreviewable.

Some limited exceptions do exist with respect to the finality of trial judge acquittal. First, because a primary purpose of the due process clause is the prevention of successive trials and not of prosecution appeals per se, it is apparently the case that if the trial judge permits the case to go to the jury, which convicts, and the judge thereafter enters a judgment of acquittal, even one founded upon his belief that the evidence does not establish guilt, the prosecution may appeal, because the effect of a reversal would be not a new trial but reinstatement of the jury’s verdict and judgment thereon.104 Second, if the trial judge enters or grants a motion of acquittal, even one based on the conclusion that the evidence is insufficient to convict, the prosecution may appeal if jeopardy had not yet attached in accordance with the federal standard.105

Trial Court Rulings Terminating Trial Before Verdict.—If, after jeopardy attaches, a trial judge grants a motion for mistrial, ordinarily the defendant is subject to retrial;106 if, after jeopardy attaches, but before a jury conviction occurs, the trial judge acquits, perhaps on the basis that the prosecution has presented insufficient evidence or that the defendant has proved a requisite defense such as insanity or entrapment, the defendant is not sub[p.1292]ject to retrial.107 However, it may be that the trial judge will grant a motion to dismiss that is neither a mistrial nor an acquittal, but is instead a termination of the trial in defendant’s favor based on some decision not relating to his factual guilt or innocence, such as prejudicial preindictment delay.108 The prosecution may not simply begin a new trial but must seek first to appeal and overturn the dismissal, a course that was not open to federal prosecutors until enactment of the 1971 law.109 That law has resulted in tentative and uncertain rulings with respect to when such dismissals may be appealed and further proceedings directed. In the first place, it is unclear in many instances whether a judge’s ruling is a mistrial, a dismissal, or an acquittal.110 In the second place, because the Justices have such differing views about the policies underlying the double jeopardy clause, determinations of which dismissals preclude appeals and further proceedings may result from shifting coalitions and from revised perspectives. Thus, the Court first fixed the line between permissible and impermissible appeals at the point at which further proceedings would have had to take place in the trial court if the dismissal were reversed. If the only thing that had to be done was to enter a judgment on a guilty verdict after reversal, appeal was constitutional and permitted under the statute;111 if further proceedings, such as continuation of the trial or some further factfinding, was necessary, appeal was not permitted.112 Now, but by a close division of the Court, the determining factor is not whether further proceedings must be had but whether the action of the trial judge, whatever its label, correct or not, resolved some or all of the factual elements of the offense charged in defendant’s favor, whether, that is, the court made some determination related to the defendant’s factual guilt or inno[p.1293]cence.113 Such dismissals relating to guilt or innocence are functional equivalents of acquittals, whereas all other dismissals are functional equivalents of mistrials.


Reprosecution Following Conviction

A basic purpose of the double jeopardy clause is to protect a defendant “against a second prosecution for the same offense after conviction.”114 It is “settled” that “no man can be twice lawfully punished for the same offense.”115 Of course, the defendant’s interest in finality, which informs much of double jeopardy jurisprudence, is quite attenuated following conviction, and he will most likely appeal, whereas the prosecution will ordinarily be content with its judgment.116 The situation involving reprosecution ordinarily arises, therefore, only in the context of successful defense appeals and controversies over punishment.

Reprosecution After Reversal on Defendant’s Appeal.—Generally, a defendant who is successful in having his conviction set aside on appeal may be tried again for the same offense, the assumption being made in the first case on the subject that, by appealing, a defendant has “waived” his objection to further prosecution by challenging the original conviction.117 Although it has char[p.1294]acterized the “waiver” theory as “totally unsound and indefensible,”118 the Court has been hesitant in formulating a new theory in maintaining the practice.119

An exception to full application of the retrial rule exists, however, when defendant on trial for an offense is convicted of a lesser offense and succeeds in having that conviction set aside. Thus, in Green v. United States,120 defendant had been placed on trial for first degree murder but convicted of second degree murder; the Court held that, following reversal of that conviction, he could not be tried again for first degree murder, although he certainly could be for second degree murder, on the theory that the first verdict was an implicit acquittal of the first degree murder charge.121 Even though the Court thought the jury’s action in the first trial was clearly erroneous, the double jeopardy clause required that the jury’s implicit acquittal be respected.122

Still another exception arises out of appellate reversals grounded on evidentiary insufficiency. Thus, in Burks v. United States,123 [p.1295]the appellate court set aside the defendant’s conviction on the basis that the prosecution had failed to rebut defendant’s proof of insanity. In directing that the defendant could not be retried, the Court observed that if the trial court “had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered and, of course, petitioner could not be retried for the same offense. . . . [I]t should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.”124 The policy underlying the clause of not allowing the prosecution to make repeated efforts to convict forecloses giving the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. On the other hand, if a reviewing court reverses a jury conviction because of its disagreement on the weight rather than the sufficiency of the evidence, retrial is permitted; the appellate court’s decision does not mean that acquittal was the only proper course, hence the deference required for acquittals is not merited.125 Also, the Burks rule does not bar reprosecution following a reversal based on erroneous admission of evidence, even if the remaining properly admitted evidence would be insufficient to convict.126

Sentence Increases.—The double jeopardy clause protects against imposition of multiple punishment for the same offense.127 The application of the principle leads, however, to a number of complexities. In a simple case, it was held that where a court inadvertently imposed both a fine and imprisonment for a crime for which the law authorized one or the other but not both, it could[p.1296]not, after the fine had been paid and the defendant had entered his short term of confinement, recall the defendant and change its judgment by sentencing him to imprisonment only.128 But the Court has held that the imposition of a sentence does not from the moment of imposition have the finality that a judgment of acquittal has. Thus, it has long been recognized that in the same term of court and before the defendant has begun serving the sentence the court may recall him and increase his sentence.129 Moreover, a defendant who is retried after he is successful in overturning his first conviction is not protected by the double jeopardy clause against receiving a greater sentence upon his second conviction.130 An exception exists with respect to capital punishment, the Court having held that government may not again seek the death penalty on retrial when on the first trial the jury had declined to impose a death sentence.131

Applying and modifying these principles, the Court narrowly approved the constitutionality of a statutory provision for sentencing of “dangerous special offenders,” which authorized prosecution appeals of sentences and permitted the appellate court to affirm, reduce, or increase the sentence.132 The Court held that the provision did not offend the double jeopardy clause. Sentences had never carried the finality that attached to acquittal, and its precedents indicated to the Court that imposition of a sentence less than the maximum was in no sense an “acquittal” of the higher sentence. Appeal resulted in no further trial or other proceedings to which[p.1297]a defendant might be subjected, only the imposition of a new sentence. An increase in a sentence would not constitute multiple punishment, the Court continued, inasmuch as it would be within the allowable sentence and the defendant could have no legitimate expectation of finality in the sentence as first given because the statutory scheme alerted him to the possibility of increase. Similarly upheld as within the allowable range of punishment contemplated by the legislature was a remedy for invalid multiple punishments under consecutive sentences: a shorter felony conviction was vacated, and time served was credited to the life sentence imposed for felony–murder. Even though the first sentence had been commuted and hence fully satisfied at the time the trial court revised the second sentence, the resulting punishment was “no greater than the legislature intended,” hence there was no double jeopardy violation.133


98 In United States v. Ball, 163 U.S. 662 (1896) , three defendants were placed on trial, Ball was acquitted and the other two were convicted, the two appealed and obtained a reversal on the ground that the indictment had been defective, and all three were again tried and all three were convicted. Ball’s conviction was set aside as violating the clause; the trial court’s action was not void but only voidable, and Ball had taken no steps to void it while the Government could not take such action. Similarly, in Benton v. Maryland, 395 U.S. 784 (1969) , the defendant was convicted of burglary but acquitted of larceny; the conviction was set aside on his appeal because the jury had been unconstitutionally chosen. He was again tried and convicted of both burglary and larceny, but the larceny conviction was held to violate the double jeopardy clause. On the doctrine of “constructive acquittals” by conviction of a lesser included offense, see infra, p.1294.
99 United States v. Martin Linen Supply Co., 430 U.S. 564, 570– 72 (1977); Sanabria v. United States 437 U.S. 54, 63–65 (1978) ; Finch v. United States, 433 U.S. 676 (1977) .
100 In Fong Foo v. United States, 369 U.S. 141 (1962) , the Court acknowledged that the trial judge’s action in acquitting was “based upon an egregiously erroneous foundation,” but it was nonetheless final and could not be reviewed. Id. at 143.
101 United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977) .
102 Id. at 570–76. See also United States v. Scott, 437 U.S. 82, 87–92 (1978) ; Smalis v. Pennsylvania, 476 U.S. 140 (1986) (demurrer sustained on basis of insufficiency of evidence is acquittal).
103 437 U.S. 54 (1978) . The double jeopardy applications of an appellate court’s reversal for insufficient evidence are discussed infra, pp.1294–95.
104 In United States v. Wilson, 420 U.S. 332 (1975) , following a jury verdict to convict, the trial judge granted defendant’s motion to dismiss on the ground of prejudicial delay, not a judgment of acquittal; the Court permitted a government appeal because reversal would have resulted in reinstatement of the jury’s verdict, not in a retrial. In United States v. Jenkins, 420 U.S. 358, 365 (1975) , the Court assumed, on the basis of Wilson, that a trial judge’s acquittal of a defendant following a jury conviction could be appealed by the government because, again, if the judge’s decision were set aside there would be no further proceedings at trial. In overruling Jenkins in United States v. Scott, 437 U.S. 82 (1978) , the Court noted the assumption and itself assumed that a judgment of acquittal bars appeal only when a second trial would be necessitated by reversal. Id. at 91 n.7.
105 Serfass v. United States, 420 U.S. 377 (1975) (after request for jury trial but before attachment of jeopardy judge dismissed indictment because of evidentiary insufficiency; appeal allowed); United States v. Sanford, 429 U.S. 14 (1976) (judge granted mistrial after jury deadlock, then four months later dismissed indictment for insufficient evidence; appeal allowed, because granting mistrial had returned case to pretrial status).
106 Supra, pp.1284–88.
107 Supra, p.1290.
108 United States v. Wilson, 420 U.S. 332 (1975) (preindictment delay); United States v. Jenkins, 420 U.S. 358 (1975) (determination of law based on facts adduced at trial; ambiguous whether judge’s action was acquittal or dismissal); United States v. Scott, 437 U.S. 82 (1978) (preindictment delay).
109 Supra, pp.1289–90. See United States v. Scott, 437 U.S. 82, 84–86 (1978) ; United States v. Sisson, 399 U.S. 267, 291–96 (1970) .
110 Cf. Lee v. United States, 432 U.S. 23 (1977) .
111 United States v. Wilson, 420 U.S. 332 (1975) (after jury guilty verdict, trial judge dismissed indictment on grounds of preindictment delay; appeal permissible because upon reversal all trial judge had to do was enter judgment on the jury’s verdict).
112 United States v. Jenkins, 420 U.S. 358 (1975) (after presentation of evidence in bench trial, judge dismissed indictment; appeal impermissible because if dismissal was reversed there would have to be further proceedings in the trial court devoted to resolving factual issues going to elements of offense charged and resulting in supplemental findings).
113 United States v. Scott, 437 U.S. 82 (1978) (at close of evidence, court dismissed indictment for preindictment delay; ruling did not go to determination of guilt or innocence, but, like a mistrial, permitted further proceedings that would go to factual resolution of guilt or innocence). The Court thought that double jeopardy policies were resolvable by balancing the defendant’s interest in having the trial concluded in one proceeding against the government’s right to one complete opportunity to convict those who have violated the law. The defendant chose to move to terminate the proceedings and, having made a voluntary choice, is bound to the consequences, including the obligation to continue in further proceedings. Id. at 95–101. The four dissenters would have followed Jenkins, and accused the Court of having adopted too restrictive a definition of acquittal. Their view is that the rule against retrials after acquittal does not, as the Court believed, “safeguard determination of innocence; rather, it is that a retrial following a final judgment for the accused necessarily threatens intolerable interference with the constitutional policy against multiple trials.” Id. at 101, 104 (Justices Brennan, White, Marshall, and Stevens). They would, therefore, treat dismissals as functional equivalents of acquittals, whenever further proceedings would be required after reversals.
114 North Carolina v. Pearce, 395 U.S. 711, 717 (1969) .
115 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873). For the conceptually–related problem of trial for a “separate” offense arising out of the same transaction, see infra, pp.1299–1301.
116 A prosecutor dissatisfied with the punishment imposed upon the first conviction might seek another trial in order to obtain a greater sentence. Cf. Ciucci v. Illinois, 356 U.S. 571 (1958) (under due process clause, double jeopardy clause not then applying to States).
117 United States v. Ball, 163 U.S. 662 (1896) . The English rule precluded a new trial in these circumstances, and circuit Justice Story adopted that view. United States v. Gilbert, 25 Fed. Cas. 1287 (No. 15,204) (C.C.D.Mass. 1834). The history is briefly surveyed in Justice Frankfurter’s dissent in Green v. United States, 355 U.S. 184, 200–05 (1957) .
118 Green v. United States, 355 U.S. 184, 197 (1957) . The more recent cases continue to reject a “waiver” theory. E.g., United States v. Dinitz, 424 U.S. 600, 609 n.11 (1976) ; United States v. Scott, 437 U.S. 82, 99 (1978) .
119 Justice Holmes in dissent in Kepner v. United States, 195 U.S. 100, 134 (1904) , rejected the “waiver” theory and propounded a theory of “continuing jeopardy,” which also continues to be rejected. See supra, p.1289 n.94. In some cases, a concept of “election” by the defendant has been suggested, United States v. Scott, 437 U.S. 82, 93 (1978) ; Jeffers v. United States, 432 U.S. 137, 152–54 (1977) , but it is not clear how this formulation might differentiate itself from “waiver.” Chief Justice Burger has suggested that “probably a more satisfactory explanation” for permissibility of retrial in this situation “lies in analysis of the respective interests involved,” Breed v. Jones, 421 U.S. 519, 533–35 (1975) , and a determination that on balance the interests of both prosecution and defense are well served by the rule. See United States v. Tateo, 377 U.S. 463, 466 (1964) ; Tibbs v. Florida, 457 U.S. 31, 39–40 (1982) .
120 355 U.S. 184 (1957) .
121 The decision necessarily overruled Trono v. United States, 199 U.S. 521 (1905) , although the Court purported to distinguish the decision. Green v. United States, 355 U.S. 184, 194–97 (1957) . See also Brantley v. Georgia, 217 U.S. 284 (1910) (no due process violation where defendant is convicted of higher offense on second trial).
122 See also Price v. Georgia, 398 U.S. 323 (1970) . The defendant was tried for murder and was convicted of involuntary manslaughter. He obtained a reversal, was again tried for murder, and again convicted of involuntary manslaughter. Acknowledging that, after reversal, Price could have been tried for involuntary manslaughter, the Court nonetheless reversed the second conviction because he had been subjected to the hazard of twice being tried for murder, in violation of the double jeopardy clause, and the effect on the jury of the murder charge being pressed could have prejudiced him to the extent of the second conviction. But cf. Morris v. Mathews, 475 U.S. 237 (1986) (inadequate showing of prejudice resulting from reducing jeopardy–barred conviction for aggravated murder to non–jeopardy–barred conviction for first degree murder). “To prevail in a case like this, the defendant must show that, but for the improper inclusion of the jeopardy–barred charge, the result of the proceeding probably would have been different.” Id. at 247.
123 437 U.S. 1 (1978) .
124 Id. at 10–11. See also Greene v. Massey, 437 U.S. 19 (1978) (remanding for determination whether appellate majority had reversed for insufficient evidence or whether some of the majority had based decision on trial error); Hudson v. Louisiana, 450 U.S. 40 (1981) (Burks applies where appellate court finds some but insufficient evidence adduced, not only where it finds no evidence). Burks was distinguished in Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984) , holding that a defendant who had elected to undergo a bench trial with no appellate review but with right of trial de novo before a jury (and with appellate review available) could not bar trial de novo and reverse his bench trial conviction by asserting that the conviction had been based on insufficient evidence. The two–tiered system in effect gave the defendant two chances at acquittal; under those circumstances jeopardy was not terminated by completion of the first entirely optional stage.
125 Tibbs v. Florida, 457 U.S. 31 (1982) . The decision was 5– to–4, the dissent arguing that weight and insufficiency determinations should be given identical double jeopardy clause treatment. Id. at 47 (Justices White, Brennan, Marshall, and Blackmun).
126 Lockhart v. Nelson, 488 U.S. 33 (1988) (state may reprosecute under habitual offender statute even though evidence of a prior conviction was improperly admitted; at retrial, state may attempt to establish other prior convictions as to which no proof was offered at prior trial).
127 Ex parte Lange, 85 U.S. (18 Wall.) 163, 173 (1874); North Carolina v. Pearce, 395 U.S. 711, 717 (1969) . For the application of the principle in cases in which the same conduct has violated more than one criminal statute, see infra, pp.1297–99.
128 Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).
129 Bozza v. United States, 330 U.S. 160 (1947) . See also Pollard v. United States, 352 U.S. 354, 359–60 (1957) (imposition of prison sentence two years after court imposed an invalid sentence of probation approved). Dicta in some cases had cast doubt on the constitutionality of the practice. United States v. Benz, 282 U.S. 304, 307 (1931) . However, United States v. DiFrancesco, 449 U.S. 117, 133–36, 138–39 (1980) , upholding a statutory provision allowing the United States to appeal a sentence imposed on a “dangerous special offender,” removes any doubt on that score. The Court there reserved decision on whether the government may appeal a sentence that the defendant has already begun to serve.
130 North Carolina v. Pearce, 395 U.S. 711, 719–21 (1969) . See also Chaffin v. Stynchcombe, 412 U.S. 17, 23–24 (1973) . The principle of implicit acquittal of an offense drawn from Green v. United States, 355 U.S. 184 (1957) , does not similarly apply to create an implicit acquittal of a higher sentence. Pearce does hold that a defendant must be credited with the time served against his new sentence. Supra, 395U.S. at 717–19 395U.S. at 717–19.
131 Bullington v. Missouri, 451 U.S. 430 (1981) . Four Justices dissented. Id. at 447 (Justices Powell, White, Rehnquist, and Chief Justice Burger). The Court disapproved Stroud v. United States 251 U.S. 15 (1919) , although formally distinguishing it. Bullington was followed in Arizona v. Rumsey, 467 U.S. 203 (1984) , also involving a separate sentencing proceeding in which a life imprisonment sentence amounted to an acquittal on imposition of the death penalty. Rumsey was decided by 7–2 vote, with only Justices White and Rehnquist dissenting.

Supplement: P. 1296, add to n.131:]

In Monge v. California, 524 U.S. 721 (1998) , the Court refused to extend the “narrow” Bullington exception outside the area of capital punishment.

132 United States v. DiFrancesco, 449 U.S. 117 (1980) . Four Justices dissented. Id. at 143, 152 (Justices Brennan, White, Marshall, and Stevens).
133 Jones v. Thomas, 491 U.S. 376, 381–82 (1989) .

Supplement Footnotes

3 United States v. Watts, 519 U.S. 148, 154 (1997) (relying on Witte v. United States, 515 U.S. 389 (1995) , and holding that a sentencing court may consider earlier conduct of which the defendant was acquitted, so long as that conduct is proved by a preponderance of the evidence). See also Almendarez–Torres v. United States, 523 U.S. 224 (1998) (Congress’ decision to treat recidivism as a sentencing factor does not violate due process); Monge v. California, 524 U.S. 721 (1998) (retrial is permissible following appellate holding of failure of proof relating to sentence enhancement). Justice Scalia, whose dissent in Almendarez– Torres argued that there was constitutional doubt over whether recidivism factors that increase a maximum sentence must be treated as a separate offense for double jeopardy purposes ( 523U.S. at 248 523U.S. at 248), answered that question affirmatively in his dissent in Monge. 524U.S. at 740–41 524U.S. at 740–41.
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