DOUBLE JEOPARDY
Development and Scope

“The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”39 A second “vitally important interest[ ]” embodied in the Double Jeopardy Clause “is the preservation of ‘the finality of judgments.’ ”40

The concept of double jeopardy goes far back in history, but its development was uneven and its meaning has varied. The English development, under the influence of Coke and Blackstone, came gradually to mean that a defendant at trial could plead former conviction or former acquittal as a special plea in bar to defeat the prosecution.41 In this country, the common-law rule was in some cases limited to this rule and in other cases extended to bar a new trial even though the former trial had not concluded in either an acquittal or a conviction. The rule’s elevation to fundamental status by its inclusion in several state bills of rights following the Revolution continued the differing approaches.42 Madison’s version of the guarantee as introduced in the House of Representatives read: “No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense.”43 Opposition in the House proceeded on the proposition that the language could be construed to prohibit a second trial after a successful appeal by a defendant and would therefore either constitute a hazard to the public by freeing the guilty or, more likely, result in a detriment to defendants because appellate courts would be loath to reverse convictions if no new trial could follow, but a motion to strike “or trial” from the clause failed.44 As approved by the Senate, however, and accepted by the House for referral to the states, the present language of the clause was inserted.45

Throughout most of its history, this clause was binding only against the Federal Government. In Palko v. Connecticut,46 the Court rejected an argument that the Fourteenth Amendment incorporated all the provisions of the first eight Amendments as limitations on the states and enunciated the due process theory under which most of those Amendments do now apply to the states. Some guarantees in the Bill of Rights, Justice Cardozo wrote, were so fundamental that they are “of the very essence of the scheme of ordered liberty” and “neither liberty nor justice would exist if they were sacrificed.”47 But the Double Jeopardy Clause, like many other procedural rights of defendants, was not so fundamental; it could be absent and fair trials could still be had. Of course, a defendant’s due process rights, absent double jeopardy consideration per se, might be violated if the state “creat[ed] a hardship so acute and shocking as to be unendurable,” but that was not the case in Palko.48 In Benton v. Maryland, however, the Court concluded “that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage. . . . Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ the same constitutional standards apply against both the State and Federal Governments.”49 Therefore, the double jeopardy limitation now applies to both federal and state governments and state rules on double jeopardy, with regard to such matters as when jeopardy attaches, must be considered in the light of federal standards.50

In a federal system, different units of government51 may have different interests to serve in the definition of crimes and the enforcement of their laws, and where the different units have overlapping jurisdictions a person may engage in conduct that will violate the laws of more than one unit.52 Although the Court had long accepted in dictum the principle that prosecution by two governments of the same defendant for the same conduct would not constitute double jeopardy, it was not until United States v. Lanza53 that the conviction in federal court of a person previously convicted in a state court for performing the same acts was sustained. “We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.”54 The “dual sovereignty” doctrine is not only tied into the existence of two sets of laws often serving different federal-state purposes and the now overruled principle that the Double Jeopardy Clause restricts only the national government and not the states,55 but it also reflects practical considerations that undesirable consequences could follow an overruling of the doctrine. Thus, a state might preempt federal authority by first prosecuting and providing for a lenient sentence (as compared to the possible federal sentence) or acquitting defendants who had the sympathy of state authorities as against federal law enforcement.56 The application of the clause to the states has therefore worked no change in the “dual sovereign” doctrine.57 The dual sovereignty doctrine has also been applied to permit successive prosecutions by two states for the same conduct,58 and to permit a federal prosecution after a conviction in an Indian tribal court for an offense stemming from the same conduct.59 Of course, when in fact two different units of the government are subject to the same sovereign, the Double Jeopardy Clause does bar separate prosecutions by them for the same offense.60

The clause speaks of being put in “jeopardy of life or limb,” which as derived from the common law, generally referred to the possibility of capital punishment upon conviction, but it is now settled that the clause protects with regard “to every indictment or information charging a party with a known and defined crime or misdemeanor, whether at the common law or by statute.”61 Despite the clause’s literal language, it can apply as well to sanctions that are civil in form if they clearly are applied in a manner that constitutes “punishment.”62 Ordinarily, however, civil in rem forfeiture proceedings may not be considered punitive for purposes of double jeopardy analysis.63 and the same is true of civil commitment following expiration of a prison term.64

Because a prime purpose of the clause is to protect against the burden of multiple trials, a defendant who raises and loses a double jeopardy claim during pretrial or trial may immediately appeal the ruling; this is a rare exception to the general rule prohibiting appeals from nonfinal orders.65

During the 1970s, the Court decided an uncommonly large number of cases raising double jeopardy claims.66 Instead of the clarity that often emerges from intense consideration of a particular issue, however, double jeopardy doctrine has descended into a state of “confusion,” with the Court acknowledging that its decisions “can hardly be characterized as models of consistency and clarity.”67 In large part, the re-evaluation of doctrine and principle has not resulted in the development of clear and consistent guidelines because of the differing emphases of the Justices upon the purposes of the clause and the consequent shifting coalition of majorities based on highly technical distinctions and individualistic fact patterns. Thus, some Justices have expressed the belief that the purpose of the clause is only to protect final judgments relating to culpability, either of acquittal or conviction, and that English common law rules designed to protect the defendant’s right to go to the first jury picked had early in our jurisprudence become confused with the Double Jeopardy Clause. Although they accept the present understanding, they do so as part of the Court’s superintending of the federal courts and not because the understanding is part and parcel of the clause; in so doing, of course, they are likely to find more prosecutorial discretion in the trial process.68 Others have expressed the view that the clause not only protects the integrity of final judgments but, more important, that it protects the accused against the strain and burden of multiple trials, which would also enhance the ability of government to convict.69 Still other Justices have engaged in a form of balancing of defendants’ rights with society’s rights to determine when reprosecution should be permitted when a trial ends prior to a final judgment not hinged on the defendant’s culpability.70 Thus, the basic area of disagreement, though far from the only one, centers on the trial from the attachment of jeopardy to the final judgment.

Reprosecution Following Mistrial

The common law generally required that the previous trial must have ended in a judgment, of conviction or acquittal, but the constitutional rule is that jeopardy attaches much earlier, in jury trials when the jury is sworn, and in trials before a judge without a jury, when the first evidence is presented.71 Therefore, if after jeopardy attaches the trial is terminated for some reason, it may be that a second trial, even if the termination was erroneous, is barred.72 The reasons the Court has given for fixing the attachment of jeopardy at a point prior to judgment and thus making some terminations of trials before judgment final insofar as the defendant is concerned is that a defendant has a “valued right to have his trial completed by a particular tribunal.”73 The reason that the defendant’s right is so “valued” is that he has a legitimate interest in completing the trial “once and for all” and “conclud[ing] his confrontation with society,”74 so as to be spared the expense and ordeal of repeated trials, the anxiety and insecurity of having to live with the possibility of conviction, and the possibility that the prosecution may strengthen its case with each try as it learns more of the evidence and of the nature of the defense.75 These reasons both inform the determination when jeopardy attaches and the evaluation of the permissibility of retrial depending upon the reason for a trial’s premature termination.

A second trial may be permitted where a mistrial is the result of “manifest necessity,”76 as when, for example, the jury cannot reach a verdict77 or circumstances plainly prevent the continuation of the trial.78 The question of whether there is double jeopardy becomes more difficult, however, when the doctrine of “manifest necessity” is called upon to justify a second trial following a mistrial granted by the trial judge because of some event within the prosecutor’s control or because of prosecutorial misconduct or because of error or abuse of discretion by the judge himself. There must ordinarily be a balancing of the defendant’s right in having the trial completed against the public interest in fair trials designed to end in just judgments.79 Thus, when, after jeopardy attached, a mistrial was granted because of a defective indictment, the Court held that retrial was not barred; a trial judge “properly exercises his discretion” in cases in which an impartial verdict cannot be reached or in which a verdict on conviction would have to be reversed on appeal because of an obvious error. “If an error could make reversal on appeal a certainty, it would not serve ‘the ends of public justice’ to require that the government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court.”80 On the other hand, when, after jeopardy attached, a prosecutor successfully moved for a mistrial because a key witness had inadvertently not been served and could not be found, the Court held a retrial barred, because the prosecutor knew prior to the selection and swearing of the jury that the witness was unavailable.81 Although this case appeared to establish the principle that an error of the prosecutor or of the judge leading to a mistrial could not constitute a “manifest necessity” for terminating the trial, Somerville distinguished and limited Downum to situations in which the error lends itself to prosecutorial manipulation, in being the sort of instance that the prosecutor could use to abort a trial that was not proceeding successfully and obtain a new trial that would be to his advantage.82

Another kind of case arises when the prosecutor moves for mistrial because of prejudicial misconduct by the defense. In Arizona v. Washington,83 defense counsel in his opening statement made prejudicial comments about the prosecutor’s past conduct, and the prosecutor’s motion for a mistrial was granted over defendant’s objections. The Court ruled that retrial was not barred by double jeopardy. Granting that in a strict, literal sense, mistrial was not “necessary” because the trial judge could have given limiting instructions to the jury, the Court held that the highest degree of respect should be given to the trial judge’s evaluation of the likelihood of the impairment of the impartiality of one or more jurors. As long as support for a mistrial order can be found in the trial record, no specific statement of “manifest necessity” need be made by the trial judge.84

Emphasis upon the trial judge’s discretion has an impact upon the cases in which it is the judge’s error, in granting sua sponte a mistrial or granting the prosecutor’s motion. The cases are in doctrinal disarray. Thus, in Gori v. United States,85 the Court permitted retrial of the defendant when the trial judge had, on his own motion and with no indication of the wishes of defense counsel, declared a mistrial because he thought the prosecutor’s line of questioning was intended to expose the defendant’s criminal record, which would have constituted prejudicial error. Although the Court thought that the judge’s action was an abuse of discretion, it approved retrial on the grounds that the judge’s decision had been taken for defendant’s benefit. This rationale was disapproved in the next case, in which the trial judge discharged the jury erroneously and in abuse of his discretion, because he disbelieved the prosecutor’s assurance that certain witnesses had been properly apprised of their constitutional rights.86 Refusing to permit retrial, the Court observed that the “doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option [to go to the first jury and perhaps obtain an acquittal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.”87 The later cases appear to accept Jorn as an example of a case where the trial judge “acts irrationally or irresponsibly.” But if the trial judge acts deliberately, giving prosecution and defense the opportunity to explain their positions, and according respect to defendant’s interest in concluding the matter before the one jury, then he is entitled to deference. This approach perhaps rehabilitates the result if not the reasoning in Gori and maintains the result and much of the reasoning of Jorn.88

Of course, “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by a prosecutorial or judicial error.”89 “Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.”90 In United States v. Dinitz,91 the trial judge had excluded defendant’s principal attorney for misbehavior and had then given defendant the option of recess while he appealed the exclusion, a mistrial, or continuation with an assistant defense counsel. Holding that the defendant could be retried after he chose a mistrial, the Court reasoned that, although the exclusion might have been in error, it was not done in bad faith to goad the defendant into requesting a mistrial or to prejudice his prospects for acquittal. The defendant’s choice, even though difficult, to terminate the trial and go on to a new trial should be respected and a new trial not barred. To hold otherwise would necessitate requiring the defendant to shoulder the burden and anxiety of proceeding to a probable conviction followed by an appeal, which if successful would lead to a new trial, and neither the public interest nor the defendant’s interests would thereby be served.

But the Court has also reserved the possibility that the defendant’s motion might be necessitated by prosecutorial or judicial over-reaching motivated by bad faith or undertaken to harass or prejudice, and in those cases retrial would be barred. It was unclear what prosecutorial or judicial misconduct would constitute such overreaching,92 but, in Oregon v. Kennedy,93 the Court adopted a narrow “intent” test, so that “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Therefore, ordinarily, a defendant who moves for or acquiesces in a mistrial is bound by his decision and may be required to stand for retrial.

Reprosecution Following Acquittal

That a defendant may not be retried following an acquittal is “the most fundamental rule in the history of double jeopardy jurisprudence.”94 “[T]he law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty.’ ”95 Although, in other areas of double jeopardy doctrine, consideration is given to the public-safety interest in having a criminal trial proceed to an error-free conclusion, no such balancing of interests is permitted with respect to acquittals, “no matter how erroneous,” no matter even if they were “egregiously erroneous.”96 Thus, an acquittal resting on the trial judge’s misreading of the elements of an offense precludes further prosecution.97

The acquittal being final, there is no governmental appeal constitutionally possible from such a judgment. This was firmly established in Kepner v. United States,98 which arose under a Philippines appeals system in which the appellate court could make an independent review of the record, set aside the trial judge’s decision, and enter a judgment of conviction.99 Previously, under the Due Process Clause, there was no barrier to state provision for prosecutorial appeals from acquittals.100 But there are instances in which the trial judge will dismiss the indictment or information without intending to acquit or in circumstances in which retrial would not be barred, and the prosecution, of course, has an interest in seeking on appeal to have errors corrected. Until 1971, however, the law providing for federal appeals was extremely difficult to apply and insulated from review many purportedly erroneous legal rulings,101 but in that year Congress enacted a new statute permitting appeals in all criminal cases in which indictments are dismissed, except in those cases in which the Double Jeopardy Clause prohibits further prosecution.102 In part because of the new law, the Court has dealt in recent years with a large number of problems in this area.

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.103 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.104

Acquittal by the Trial Judge.

When a trial judge acquits a defendant, that action concludes the matter to the same extent that acquittal by jury verdict does.105 There is no possibility of retrial for the same offense.106 But it may be difficult at times to determine whether the trial judge’s action was in fact an acquittal or whether it was a dismissal or some other action, which the prosecution may be able to appeal or the judge may be able to reconsider.107 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.”108 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 constituting the offense.109 Even if, as happened in Sanabria v. United States,110 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.111

Some limited exceptions 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 the judgment thereon.112 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, then the prosecution may appeal if jeopardy had not yet attached in accordance with the federal standard.113

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;114 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 subject to retrial.115 This is so even where the trial court’s ruling on the sufficiency of the evidence is based on an erroneous interpretation of the statute defining the elements of the offense.116 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.117 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 Omnibus Crime Control Act in 1971.118 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.119 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;120 if further proceedings, such as continuation of the trial or some further factfinding, was necessary, appeal was not permitted.121 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 innocence.122 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.”123 It is “settled” that “no man can be twice lawfully punished for the same offense.”124 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.125 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.126 Although it has characterized the “waiver” theory as “totally unsound and indefensible,”127 the Court has been hesitant in formulating a new theory in maintaining the practice.128

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,129 the 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.130 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.131

Still another exception arises out of appellate reversals grounded on evidentiary insufficiency. Thus, in Burks v. United States,132 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.”133 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.134 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.135

Sentence Increases.

The Double Jeopardy Clause protects against imposition of multiple punishment for the same offense.136 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 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.137 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.138 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.139 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.140

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.141 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 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.142

The Court is also quite deferential to legislative classification of recidivism sentencing enhancement factors as relating only to sentencing and as not constituting elements of an “offense” that must be proved beyond a reasonable doubt. Ordinarily, therefore, sentence enhancements cannot be construed as additional punishment for the previous offense, and the Double Jeopardy Clause is not implicated. “Sentencing enhancements do not punish a defendant for crimes for which he was not convicted, but rather increase his sentence because of the manner in which he committed his crime of conviction.”143

“For the Same Offence”

Sometimes as difficult as determining when a defendant has been placed in jeopardy is determining whether he was placed in jeopardy for the same offense. As noted previously, the same conduct may violate the laws of two different sovereigns, and a defendant may be proceeded against by both because each may have different interests to serve.144 The same conduct may transgress two or more different statutes, because laws reach lesser and greater parts of one item of conduct, or may violate the same statute more than once, as when one robs several people in a group at the same time.

Legislative Discretion as to Multiple Sentences.

It fre-quently happens that one activity of a criminal nature will violate one or more laws or that one or more violations may be charged.145 Although the question is not totally free of doubt, it appears that the Double Jeopardy Clause does not limit the legislative power to split a single transaction into separate crimes so as to give the prosecution a choice of charges that may be tried in one proceeding, thereby making multiple punishments possible for essentially one transaction.146 “Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory construction is at an end and . . . the trial court or jury may impose cumulative punishment under such statutes in a single trial.”147

The clause does, however, create a rule of construction—a presumption against the judiciary imposing multiple punishments for the same transaction unless Congress has “spoken in language that is clear and definite”148 to pronounce its intent that multiple punishments indeed be imposed. The commonly used test in determining whether Congress would have wanted to punish as separate offenses conduct occurring in the same transaction, absent otherwise clearly expressed intent, is the “same evidence” rule. The rule, announced in Blockburger v. United States,149 “is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Thus, in Gore v. United States,150 the Court held that defendant’s one act of selling narcotics had violated three distinct criminal statutes, each of which required proof of a fact not required by the others; prosecuting him on all three counts in the same proceeding was therefore permissible.151 So too, the same evidence rule does not upset the “established doctrine” that, for double jeopardy purposes, “a conspiracy to commit a crime is a separate offense from the crime itself,”152 or the related principle that Congress may prescribe that predicate offenses and “continuing criminal enterprise” are separate offenses.153 On the other hand, in Whalen v. United States,154 the Court determined that a defendant could not be separately punished for rape and for killing the same victim in the perpetration of the rape, because it is not the case that each statute requires proof of a fact that the other does not, and no indication existed in the statutes and the legislative history that Congress wanted the separate offenses punished.155 In this as in other areas, a guilty plea ordinarily precludes collateral attack.156

Successive Prosecutions for “the Same Offense”.

Successive prosecutions raise fundamental double jeopardy concerns extending beyond those raised by enhanced and multiple punishments. It is more burdensome for a defendant to face charges in separate proceedings, and if those proceedings are strung out over a lengthy period the defendant is forced to live in a continuing state of uncertainty. At the same time, multiple prosecutions allow the state to hone its trial strategies through successive attempts at conviction.157 In Brown v. Ohio,158 the Court, apparently for the first time, applied the same evidence test to bar successive prosecutions in state court for different statutory offenses involving the same conduct. The defendant had been convicted of “joyriding,” defined as operating a motor vehicle without the owner’s consent, and was then prosecuted and convicted of stealing the same automobile. Because the state courts had conceded that joyriding was a lesser included offense of auto theft, the Court observed that each offense required the same proof and for double jeopardy purposes met the Blockburger test. The second conviction was overturned.159 Application of the same principles resulted in a holding that a prior conviction of failing to reduce speed to avoid an accident did not preclude a second trial for involuntary manslaughter, because failing to reduce speed was not a necessary element of the statutory offense of manslaughter, unless the prosecution in the second trial had to prove failing to reduce speed to establish this particular offense.160 In 1990, the Court modified the Brown approach, stating that the appropriate focus is on same conduct rather than same evidence.161 That interpretation held sway only three years, however, before being repudiated as “wrong in principle [and] unstable in application.”162 The Brown Court had noted some limitations applicable to its holding,163 and more have emerged subsequently. Principles appropriate in the “classically simple” lesser-included-offense and related situations are not readily transposable to “multilayered conduct” governed by the law of conspiracy and continuing criminal enterprise, and it remains the law that “a substantive crime and a conspiracy to commit that crime are not the ‘same offense’ for double jeopardy purposes.”164 For double jeopardy purposes, a defendant is “punished . . . only for the offense of which [he] is convicted”; a later prosecution or later punishment is not barred simply because the underlying criminal activity has been considered at sentencing for a different offense.165 Similarly, recidivism-based sentence enhancement does not constitute multiple punishment for the “same” prior offense, but instead is a stiffened penalty for the later crime.166

The “Same Transaction” Problem.

The Supreme Court has also interpreted the Double Jeopardy Clause to incorporate the doctrine of “collateral estoppel” or “issue preclusion”167 –that is, the general legal principle that prohibits the relitigation of an issue of fact or law raised and necessarily resolved by a prior judgment.168 The Court first recognized the Double Jeopardy Clause’s issue-preclusion component in Ashe v. Swenson.169 Ashe involved a robbery of six poker players.170 The defendant in Ashe, after being acquitted of robbing one of the players because of insufficient evidence, was tried and convicted of robbing another player.171 The Court held that because the sole issue in dispute in the first trial was whether Ashe had been one of the robbers, “[o]nce a jury had determined . . . that there was at least a reasonable doubt” as to that issue, the Constitution protected a “man who has been acquitted from having to ‘run the gantlet’ a second time.”172 In so holding, Ashe explained that issue preclusion in criminal cases must be applied with “realism and rationality” with a close examination of the underlying record to determine what was “actually decided” by the prior jury’s verdict of acquittal.173 If a criminal judgment does not depend on a jury’s determination of a particular factual issue, relitigation of that issue can occur.174

Then in United States v. Powell, the Court rejected the argument that issue preclusion barred the acceptance of an “inconsistent” jury verdict that included an acquittal on a drug charge but guilty verdicts of using a telephone to “caus[e] and faciliat[e]” that same drug offense.175 Reaffirming a precedent from more than a half a century before,176 the Powell Court held that the “Government’s inability to invoke review, the general reluctance to inquire into the workings of the jury, and the possible exercise of lenity” by the jury cautioned against allowing defendants to challenge inconsistent verdicts on issue preclusion grounds.177

Several decades later, the Court extended the logic of Powell in Bravo-Fernandez v. United States.178 In that case, a jury had returned inconsistent verdicts of conviction and acquittal with respect to two criminal defendants, but their convictions were later vacated for legal errors unrelated to the inconsistency.179 The Court, recognizing Powell’s conclusion that inconsistent verdicts do not indicate whether the acquittal was the result of “mistake, compromise, or lenity,”180 held that re-prosecution on the counts on which a conviction was initially obtained could occur. According to the Court, because of the “irrationality” of the earlier inconsistent verdicts,181 the criminal defendants failed to demonstrate that the first jury had “actually decided” that they did not commit the crime underlying the second trial.182 As a result, while the government was prohibited from re-prosecuting the defendants in Bravo-Fernandez on the charges that had earlier resulted in an acquittal,183 issue preclusion could not be used to prevent a second trial on the charges that had previously resulted in guilty verdicts.

Footnotes

39
Green v. United States, 355 U.S. 184, 187–88 (1957). The passage is often quoted with approval by the Court. E.g., Crist v. Bretz, 437 U.S. 28, 35 (1978); United States v. DiFrancesco, 449 U.S. 117, 127–28 (1980); Yeager v. United States, 557 U.S. ___, No. 08–67, slip op. at 7 (2009). For a comprehensive effort to assess the purposes of application of the clause, see Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP. CT. REV. 81. [Back to text]
40
Yeager v. United States, 557 U.S. ___, No. 08–67, slip op. at 6, 7 (2009), quoting Crist v. Bretz, 437 U.S. 28, 33 (1978). [Back to text]
41
M. FRIEDLAND, DOUBLE JEOPARDY part 1 (1969); Crist v. Bretz, 437 U.S. 28, 32–36 (1978), and id. at 40 (Justice Powell dissenting); United States v. Wilson, 420 U.S. 332, 340 (1975). [Back to text]
42
J. SIGLER, DOUBLE JEOPARDY: THE DEVELOPMENT OF A LEGAL AND SOCIAL POLICY 21–27 (1969). The first bill of rights that expressly adopted a double jeopardy clause was the New Hampshire Constitution of 1784. “No subject shall be liable to be tried, after an acquittal, for the same crime or offence.” Art. I, Sec. XCI, 4 F. Thorpe, The Federal and State Constitution, reprinted in H.R. DOC. NO. 357, 59th Congress, 2d Sess. 2455 (1909). A more comprehensive protection was included in the Pennsylvania Declaration of Rights of 1790, which had language almost identical to the present Fifth Amendment provision. Id. at 3100. [Back to text]
43
1 ANNALS OF CONGRESS 434 (June 8, 1789). [Back to text]
44
Id. at 753. [Back to text]
45
2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1149, 1165 (1971). In Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting), Justice Powell attributed to inadvertence the broadening of the “rubric” of double jeopardy to incorporate the common law rule against dismissal of the jury prior to verdict, a question the majority passed over as being “of academic interest only.” Id. at 34 n.10. [Back to text]
46
302 U.S. 319 (1937). [Back to text]
47
302 U.S. at 325, 326. [Back to text]
48
302 U.S. at 328. [Back to text]
49
395 U.S. 784, 795, 795 (1969) (citation omitted). [Back to text]
50
Crist v. Bretz, 437 U.S. 28, 37–38 (1978). But see id. at 40 (Justices Powell and Rehnquist and Chief Justice Burger dissenting) (standard governing states should be more relaxed). [Back to text]
51
Id. See also cases cited in Bartkus v. Illinois, 359 U.S. 121, 132 n.19 (1959), and Abbate v. United States, 359 U.S. 187, 192–93 (1959). [Back to text]
52
The problem was recognized as early as Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820), and the rationale of the doctrine was confirmed within thirty years. Fox v. Ohio, 46 U.S. (5 How.) 410 (1847); United States v. Marigold, 50 U.S. (9 How.) 560 (1850); Moore v. Illinois, 55 U.S. (14 How.) 13 (1852). [Back to text]
53
260 U.S. 377 (1922). [Back to text]
54
260 U.S. at 382. See also Hebert v. Louisiana, 272 U.S. 312 (1924); Screws v. United States, 325 U.S. 91, 108 (1945); Jerome v. United States, 318 U.S. 101 (1943). [Back to text]
55
Benton v. Maryland, 395 U.S. 784 (1969), extended the clause to the states. [Back to text]
56
Reaffirmation of the doctrine against double jeopardy claims as to the Federal Government and against due process claims as to the states occurred in Abbate v. United States, 359 U.S. 187 (1959), and Bartkus v. Illinois, 359 U.S. 121 (1959), both cases containing extensive discussion and policy analyses. The Justice Department follows a policy of generally not duplicating a state prosecution brought and carried out in good faith, see Petite v. United States, 361 U.S. 529, 531 (1960); Rinaldi v. United States, 434 U.S. 22 (1977), and several provisions of federal law forbid a federal prosecution following a state prosecution. E.g., 18 U.S.C. §§ 659, 660, 1992, 2117. The Brown Commission recommended a general statute to this effect, preserving discretion in federal authorities to proceed upon certification by the Attorney General that a United States interest would be unduly harmed if there were no federal prosecution. NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, FINAL REPORT 707 (1971). [Back to text]
57
United States v. Wheeler, 435 U.S. 313 (1978) (dual sovereignty doctrine permits federal prosecution of an Indian for statutory rape following his plea of guilty in a tribal court to contributing to the delinquency of a minor, both charges involving the same conduct; tribal law stemmed from the retained sovereignty of the tribe and did not flow from the Federal Government). [Back to text]
58
Heath v. Alabama, 474 U.S. 82 (1985) (defendant who crossed state line in the course of a kidnap and murder was prosecuted for murder in both states). [Back to text]
59
United States v. Lara, 541 U.S. 193 (2004) (federal prosecution for assaulting a federal officer after tribal conviction for “violence to a policeman”). The Court concluded that Congress has power to recognize tribal sovereignty to prosecute non-member Indians, that Congress had done so, and that consequently the tribal prosecution was an exercise of tribal sovereignty, not an exercise of delegated federal power on which a finding of double jeopardy could be based. [Back to text]
60
See, e.g., Waller v. Florida, 397 U.S. 387 (1970) (trial by municipal court precluded trial for same offense by state court); Grafton v. United States, 206 U.S. 333 (1907) (trial by military court-martial precluded subsequent trial in territorial court). More recently, in Puerto Rico v. Sanchez Valle, the Court held that the separate prosecution of an individual by the United States and Puerto Rico for the same underlying conduct ran afoul of the Double Jeopardy Clause because the two governments are not “separate sovereigns.” See 579 U.S. ___, No. 15–108, slip op. at 17–18 (2016). Even though Puerto Rico came to exercise self-rule through a popularly ratified constitution in the mid-twentieth century, the Court concluded that the “original source” for its authority to prosecute crimes ultimately derived from Congress and, specifically, a federal statute which authorized the people of Puerto Rico to draft their own constitution, meaning that the challenged prosecution amounted to a reprosecution by the same sovereign. See id. at 14–16 (2016). [Back to text]
61
Ex parte Lange, 85 U.S. (18 Wall.) 163, 169 (1874). The clause generally has no application in noncriminal proceedings. Helvering v. Mitchell, 303 U.S. 391 (1938). [Back to text]
62
The clause applies in juvenile court proceedings that are formally civil. Breed v. Jones, 421 U.S. 519 (1975). See also United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); United States v. Halper, 490 U.S. 435 (1989) (civil penalty under the False Claims Act constitutes punishment if it is overwhelmingly disproportionate to compensating the government for its loss, and if it can be explained only as serving retributive or deterrent purposes); Montana Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767 (1994) (tax on possession of illegal drugs, “to be collected only after any state or federal fines or forfeitures have been satisfied,” constitutes punishment for purposes of double jeopardy). But see Seling v. Young, 531 U.S. 250 (2001) (a statute that has been held to be civil and not criminal in nature cannot be deemed punitive “as applied” to a single individual). The issue of whether a law is civil or punitive in nature is essentially the same for ex post facto and for double jeopardy analysis. 531 U.S. at 263. [Back to text]
63
United States v. Ursery, 518 U.S. 267 (1996) (forfeitures, pursuant to 19 U.S.C. § 981 and 21 U.S.C. § 881, of property used in drug and money laundering offenses, are not punitive). The Court in Ursery applied principles that had been set forth in Various Items of Personal Property v. United States, 282 U.S. 577 (1931) (forfeiture of distillery used in defrauding government of tax on spirits), and United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) (forfeiture, pursuant to 18 U.S.C. § 924(d), of firearms “used or intended to be used in” firearms offenses). A two-part inquiry is followed. First, the Court inquires whether Congress intended the forfeiture proceeding to be civil or criminal. Then, if Congress intended that the proceeding be civil, the court determines whether there is nonetheless the “clearest proof ” that the sanction is “so punitive” as to transform it into a criminal penalty. 89 Firearms, 465 U.S. at 366. [Back to text]
64
Kansas v. Hendricks, 521 U.S. 346, 369–70 (1997) (commitment under state’s Sexually Violent Predator Act). [Back to text]
65
Abney v. United States, 431 U.S. 651 (1977). [Back to text]
66
See United States v. DiFrancesco, 449 U.S. 117, 126–27 (1980) (citing cases). [Back to text]
67
Burks v. United States, 437 U.S. 1, 9, 15 (1978). One result is instability in the law. Thus, Burks overruled, to the extent inconsistent, four cases decided between 1950 and 1960, and United States v. Scott, 437 U.S. 82 (1978), overruled a case decided just three years earlier, United States v. Jenkins, 420 U.S. 358 (1975). [Back to text]
68
See Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting opinion). Justice Powell, joined by Chief Justice Burger and Justice Rehnquist, argued that, with the Double Jeopardy Clause so interpreted, the Due Process Clause could be relied on to prevent prosecutorial abuse during the trial designed to abort the trial and obtain a second one. Id. at 50. All three have joined, indeed, in some instances, have authored, opinions adverting to the role of the double jeopardy clause in protecting against such prosecutorial abuse. E.g., United States v. Scott, 437 U.S. 82, 92–94 (1978); Oregon v. Kennedy, 456 U.S. 667 (1982) (but narrowing scope of concept). [Back to text]
69
United States v. Scott, 437 U.S. 82, 101 (1978) (dissenting opinion) (Justices Brennan, White, Marshall, and Stevens). [Back to text]
70
Thus, Justice Blackmun has enunciated positions recognizing a broad right of defendants much like the position of the latter three Justices, Crist v. Bretz, 437 U.S. 28, 38 (1978) (concurring), and he joined Justice Stevens’ concurrence in Oregon v. Kennedy, 456 U.S. 667, 681 (1982), but he also joined the opinions in United States v. Scott, 437 U.S. 82 (1978), and Arizona v. Washington, 434 U.S. 497 (1978) (Justice Blackmun concurring only in the result). [Back to text]
71
The rule traces back to United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824). See also Kepner v. United States, 195 U.S. 100 (1904); Downum v. United States, 372 U.S. 734 (1963) (trial terminated just after jury sworn but before any testimony taken). In Crist v. Bretz, 437 U.S. 28 (1978), the Court held this standard of the attachment of jeopardy was “at the core” of the clause and it therefore binds the States. But see id. at 40 (Justice Powell dissenting). An accused is not put in jeopardy by preliminary examination and discharge by the examining magistrate, Collins v. Loisel, 262 U.S. 426 (1923), by an indictment which is quashed, Taylor v. United States, 207 U.S. 120, 127 (1907), or by arraignment and pleading to the indictment. Bassing v. Cady, 208 U.S. 386, 391–92 (1908). A defendant may be tried after preliminary proceedings that present no risk of final conviction. E.g., Ludwig v. Massachusetts, 427 U.S. 618, 630–32 (1976) (conviction in prior summary proceeding does not foreclose trial in a court of general jurisdiction, where defendant has absolute right to demand a trial de novo and thus set aside the first conviction); Swisher v. Brady, 438 U.S. 204 (1978) (double jeopardy not violated by procedure under which masters hear evidence and make preliminary recommendations to juvenile court judge, who may confirm, modify, or remand). [Back to text]
72
Cf. United States v. Jorn, 400 U.S. 470 (1971); Downum v. United States, 372 U.S. 734 (1963). “Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” Arizona v. Washington, 434 U.S. 497, 503–05 (1978). [Back to text]
73
Wade v. Hunter, 336 U.S. 684, 689 (1949). [Back to text]
74
United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality opinion). [Back to text]
75
Arizona v. Washington, 434 U.S. 497, 503–05 (1978); Crist v. Bretz, 437 U.S. 28, 35–36 (1978). See Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP. CT. REV. 81, 86–97. [Back to text]
76
United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). [Back to text]
77
United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824); Logan v. United States, 144 U.S. 263 (1892). See Renico v. Lett, 559 U.S. ___, No. 09–338, slip op. (2010) (in a habeas review case, discussing the broad deference given to trial judge’s decision to declare a mistrial because of jury deadlock). See also, Yeager v. United States, 557 U.S. ___, No. 08–67, slip op. at 7 (2009); Blueford v. Arkansas, 566 U.S. ___, No. 10–1320, slip op. (2012) (reprosecution for a greater offense allowed following jury deadlock on a lesser included offense). [Back to text]
78
Simmons v. United States, 142 U.S. 148 (1891) (juror’s impartiality became questionable during trial); Thompson v. United States, 155 U.S. 271 (1884) (discovery during trial that one of the jurors had served on the grand jury that had indicted defendant and was therefore disqualified); Wade v. Hunter, 336 U.S. 684 (1949) (court-martial discharged because enemy advancing on site). [Back to text]
79
Illinois v. Somerville, 410 U.S. 458, 463 (1973). [Back to text]
80
410 U.S. at 464. [Back to text]
81
Downum v. United States, 372 U.S. 734 (1963). [Back to text]
82
Illinois v. Somerville, 410 U.S. 458, 464–65, 468–69 (1973). [Back to text]
83
434 U.S. 497 (1978). [Back to text]
84
“Manifest necessity” characterizes the burden the prosecutor must shoulder in justifying retrial. 434 U.S. at 505–06. But “necessity” cannot be interpreted literally; it means rather a “high degree” of necessity, and some instances, such as hung juries, easily meet that standard. Id. at 506–07. In a situation like that presented in this case, great deference must be paid to the trial judge’s decision because he was in the best position to determine the extent of the possible bias, having observed the jury’s response, and to respond by the course he deems best suited to deal with it. Id. at 510–14. Here, “the trial judge acted responsibly and deliberately, and accorded careful consideration to respondent’s interest in having the trial concluded in a single proceeding. . . . [H]e exercised ‘sound discretion.’ . . . ” Id. at 516. [Back to text]
85
367 U.S. 364 (1961). See also United States v. Tateo, 377 U.S. 463 (1964) (reprosecution permitted after the setting aside of a guilty plea found to be involuntary because of coercion by the trial judge). [Back to text]
86
United States v. Jorn, 400 U.S. 470, 483 (1971). [Back to text]
87
400 U.S. at 485. The opinion of the Court was by a plurality of four, but two other Justices joined it after first arguing that jurisdiction was lacking to hear the government’s appeal. [Back to text]
88
Arizona v. Washington, 434 U.S. 497, 514, 515–16 (1978). See also Illinois v. Somerville, 410 U.S. 458, 462, 465–66, 469–71 (1973) (discussing Gori and Jorn.) [Back to text]
89
United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion). [Back to text]
90
United States v. Scott, 437 U.S. 82, 93 (1978). [Back to text]
91
424 U.S. 600 (1976). See also Lee v. United States, 432 U.S. 23 (1977) (defendant’s motion to dismiss because the information was improperly drawn made after opening statement and renewed at close of evidence was functional equivalent of mistrial and when granted did not bar retrial, Court emphasizing that defendant by his timing brought about foreclosure of opportunity to stay before the same trial). [Back to text]
92
Compare United States v. Dinitz, 424 U.S. 600, 611 (1976), with United States v. Tateo, 377 U.S. 463, 468 n.3 (1964). [Back to text]
93
456 U.S. 667, 676 (1982). The Court thought a broader standard requiring an evaluation of whether acts of the prosecutor or the judge prejudiced the defendant would be unmanageable and would be counterproductive because courts would be loath to grant motions for mistrials knowing that reprosecution would be barred. Id. at 676–77. The defendant had moved for mistrial after the prosecutor had asked a key witness a prejudicial question. Four Justices concurred, noting that the question did not constitute overreaching or harassment and objecting both to the Court’s reaching the broader issue and to its narrowing the exception. Id. at 681. [Back to text]
94
United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). [Back to text]
95
United States v. Scott, 437 U.S. 82, 91 (1978) (quoting Green v. United States, 355 U.S. 184, 188 (1957)). For the conceptually related problem of trial for a “separate” offense arising out of the same “transaction,” see discussion under “The ‘Same Transaction’ Problem,” infra. [Back to text]
96
Burks v. United States, 437 U.S. 1, 16 (1978); Fong Foo v. United States, 369 U.S. 141, 143 (1962). For evaluation of those interests of the defendant that might support the absolute rule of finality, and rejection of all such interests save the right of the jury to acquit against the evidence and the trial judge’s ability to temper legislative rules with leniency, see Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP. CT. REV. 81, 122–37. [Back to text]
97
Evans v. Michigan, 568 U.S. ___, No. 11–1327, slip op. (2013) (acquittal after judge ruled the prosecution failed to prove that a burned building was not a dwelling, but such proof was not legally required for the arson offense charged). [Back to text]
98
195 U.S. 100 (1904). The case interpreted not the constitutional provision but a statutory provision extending double jeopardy protection to the Philippines. The Court has described the case, however, as correctly stating constitutional principles. See, e.g., United States v. Wilson, 420 U.S. 332, 346 n.15 (1975); United States v. DiFrancesco, 449 U.S. 117, 113 n.13 (1980). [Back to text]
99
In dissent, Justice Holmes, joined by three other Justices, propounded a theory of “continuing jeopardy,” so that until the case was finally concluded one way or another, through judgment of conviction or acquittal, and final appeal, there was no second jeopardy no matter how many times a defendant was tried. 195 U.S. at 134. The Court has numerous times rejected any concept of “continuing jeopardy.” E.g., Green v. United States, 355 U.S. 184, 192 (1957); United States v. Wilson, 420 U.S. 332, 351–53 (1975); Breed v. Jones, 421 U.S. 519, 533–35 (1975). [Back to text]
100
Palko v. Connecticut, 302 U.S. 319 (1937). Palko is no longer viable. Cf. Greene v. Massey, 437 U.S. 19 (1978). [Back to text]
101
The Criminal Appeals Act of 1907, 34 Stat. 1246, was “a failure . . . , a most unruly child that has not improved with age.” United States v. Sisson, 399 U.S. 267, 307 (1970). See also United States v. Oppenheimer, 242 U.S. 85 (1916); Fong Foo v. United States, 369 U.S. 141 (1962). [Back to text]
102
Title III of the Omnibus Crime Control Act, Pub. L. 91–644, 84 Stat. 1890, 18 U.S.C. § 3731. Congress intended to remove all statutory barriers to governmental appeal and to allow appeals whenever the Constitution would permit, so that interpretation of the statute requires constitutional interpretation as well. United States v. Wilson, 420 U.S. 332, 337 (1974). See Sanabria v. United States, 437 U.S. 54, 69 n.23 (1978), and id. at 78 (Justice Stevens concurring). [Back to text]
103
What constitutes a jury acquittal may occasionally be uncertain. In Blueford v. Arkansas, 566 U.S. ___, No. 10–1320, slip op. (2012), the defendant was charged with capital murder in an “acquittal-first” jurisdiction, in which the jury must unanimously agree that a defendant is not guilty of a greater offense before it may begin to consider a lesser included offense. After several hours of deliberations, the foreperson of the jury stated in open court that the jury was unanimously against conviction for capital murder and the lesser included offense of first degree murder, but was deadlocked on manslaughter, the next lesser included offense. After further deliberations, the judge declared a mistrial because of a hung jury. Six Justices of the Court subsequently held that the foreperson’s statement on capital murder and first degree murder lacked the necessary finality of an acquittal, and found that Double Jeopardy did not bar a subsequent prosecution for those crimes. Three dissenting Justices held that Double Jeopardy required a partial verdict of acquittal on the greater offenses under the circumstances. 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. [Back to text]
104
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 discussion infra under “Reprosecution After Reversal on Defendant’s Appeal.” [Back to text]
105
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). [Back to text]
106
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. [Back to text]
107
As a general rule a state may prescribe that a judge’s midtrial determination of the sufficiency of the prosecution’s proof may be reconsidered. Smith v. Massachusetts, 543 U.S. 462 (2005) (Massachusetts had not done so, however, so the judge’s midtrial acquittal on one of three counts became final for double jeopardy purposes when the prosecution rested its case). [Back to text]
108
United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). [Back to text]
109
430 U.S. 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). [Back to text]
110
437 U.S. 54 (1978). [Back to text]
111
See also Smith v. Massachusetts, 543 U.S. 462 (2005) (acquittal based on erroneous interpretation of precedent). [Back to text]
112
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. [Back to text]
113
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 pre-trial status). [Back to text]
114
See “Reprosecution After Reversal on Defendant’s Appeal,” supra. [Back to text]
115
See “Acquittal by the Trial Judge,” supra. [Back to text]
116
See Evans v. Michigan, 568 U.S. ___, No. 11–1327, slip op. (2013). [Back to text]
117
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). [Back to text]
118
See United States v. Scott, 437 U.S. 82, 84–86 (1978); United States v. Sis-son, 399 U.S. 267, 291–96 (1970). [Back to text]
119
Cf. Lee v. United States, 432 U.S. 23 (1977). [Back to text]
120
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). [Back to text]
121
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). [Back to text]
122
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. [Back to text]
123
North Carolina v. Pearce, 395 U.S. 711, 717 (1969). [Back to text]
124
Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873). [Back to text]
125
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). [Back to text]
126
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). [Back to text]
127
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). [Back to text]
128
Justice Holmes, dissenting 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 discussion, supra. 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 differ 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). [Back to text]
129
355 U.S. 184 (1957). [Back to text]
130
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). [Back to text]
131
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. [Back to text]
132
437 U.S. 1 (1978). [Back to text]
133
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 Mun. Court v. Lydon, 466 U.S. 294 (1984), which held that a defendant who had elected to undergo a bench trial with no appellate review but with the 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. [Back to text]
134
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). [Back to text]
135
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). [Back to text]
136
Ex parte Lange, 85 U.S. (18 Wall.) 163, 173 (1874); North Carolina v. Pearce, 395 U.S. 711, 717 (1969). [Back to text]
137
Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874). [Back to text]
138
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. [Back to text]
139
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. 395 U.S. at 717–19. [Back to text]
140
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. In Monge v. California, 524 U.S. 721 (1998), the Court refused to extend the “narrow” Bullington exception outside the area of capital punishment. But see Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) (state may seek the death penalty in a retrial when defendant appealed following discharge of the sentencing jury under a statute authorizing discharge based on the court’s “opinion that further deliberation would not result in a unanimous agreement as to the sentence, in which case the court shall sentence the defendant to life imprisonment”). [Back to text]
141
United States v. DiFrancesco, 449 U.S. 117 (1980). Four Justices dissented. Id. at 143, 152 (Justices Brennan, White, Marshall, and Stevens). [Back to text]
142
Jones v. Thomas, 491 U.S. 376, 381–82 (1989). [Back to text]
143
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’s 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 (523 U.S. at 248), answered that question affirmatively in his dissent in Monge. 524 U.S. 740–41. [Back to text]
144
See discussion supra under “Development and Scope.” [Back to text]
145
There are essentially two kinds of situations here. There are “double-description” cases in which criminal law contains more than one prohibition for conduct arising out of a single transaction. E.g., Gore v. United States, 357 U.S. 386, 392–93 (1958) (one sale of narcotics resulted in three separate counts: (1) sale of drugs not in pursuance of a written order, (2) sale of drugs not in the original stamped package, and (3) sale of drugs with knowledge that they had been unlawfully imported). And there are “unit-of-prosecution” cases in which the same conduct may violate the same statutory prohibition more than once. E.g., Bell v. United States, 349 U.S. 81 (1955) (defendant who transported two women across state lines for an immoral purpose in one trip in same car indicted on two counts of violating Mann Act). See Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP. CT. REV. 81, 111–22. [Back to text]
146
Albernaz v. United States, 450 U.S. 333, 343–44 (1981) (defendants convicted on separate counts of conspiracy to import marijuana and conspiracy to distribute marijuana, both charges relating to the same marijuana.) The concurrence objected that the clause does preclude multiple punishments for separate statutory offenses unless each requires proof of a fact that the others do not. Id. at 344. Because the case involved separate offenses that met this test, Albernaz strictly speaking is not a square holding and previous dicta is otherwise, but Albernaz’s dicta is well-considered in view of the positions of at least four of its Justices who have objected to the dicta in other cases suggesting a constitutional restraint by the clause. Whalen v. United States, 445 U.S. 684, 695, 696, 699 (1980) (Justices White, Blackmun, Rehnquist, and Chief Justice Burger). [Back to text]
147
Missouri v. Hunter, 459 U.S. 359, 368–69 (1983) (separate offenses of “first degree robbery,” defined to include robbery under threat of violence, and “armed criminal action”). Only Justices Marshall and Stevens dissented, arguing that the legislature should not be totally free to prescribe multiple punishment for the same conduct, and that the same rules should govern multiple prosecutions and multiple punishments. [Back to text]
148
United States v. Universal C.I.T. Corp., 344 U.S. 218, 221–22 (1952). [Back to text]
149
284 U.S. 299, 304 (1932). This case itself was not a double jeopardy case, but it derived the rule from Gavieres v. United States, 220 U.S. 338, 342 (1911), which was a double jeopardy case. See also Carter v. McClaughry, 183 U.S. 365 (1902); Morgan v. Devine, 237 U.S. 632 (1915); Albrecht v. United States, 273 U.S. 1 (1927); Pinkerton v. United States, 328 U.S. 640 (1946); American Tobacco Co. v. United States, 328 U.S. 781 (1946); United States v. Michener, 331 U.S. 789 (1947); Pereira v. United States, 347 U.S. 1 (1954); Callanan v. United States, 364 U.S. 587 (1961). [Back to text]
150
357 U.S. 386 (1958). [Back to text]
151
See also Albernaz v. United States, 450 U.S. 333 (1981); Iannelli v. United States, 420 U.S. 770 (1975) (defendant convicted on two counts, one of the substantive offense, one of conspiracy to commit the substantive offense; defense raised variation of Blockburger test, Wharton’s Rule requiring that one may not be punished for conspiracy to commit a crime when the nature of the crime necessitates participation of two or more persons for its commission; Court recognized Wharton’s Rule as a double-jeopardy inspired presumption of legislative intent but held that congressional intent in this case was “clear and unmistakable” that both offenses be punished separately). [Back to text]
152
United States v. Felix, 503 U.S. 378, 391 (1992). But cf. Rutledge v. United States, 517 U.S. 292 (1996) (21 U.S.C. § 846, prohibiting conspiracy to commit drug offenses, does not require proof of any fact that is not also a part of the continuing criminal enterprise offense under 21 U.S.C. § 848, so there are not two separate offenses). [Back to text]
153
Garrett v. United States, 471 U.S. 773 (1985) (“continuing criminal enterprise” is a separate offense under the Comprehensive Drug Abuse Prevention and Control Act of 1970). [Back to text]
154
445 U.S. 684 (1980). [Back to text]
155
The Court reasoned that a conviction for killing in the course of rape could not be had without providing all of the elements of the offense of rape. See also Jeffers v. United States, 432 U.S. 137 (1977) (no indication in legislative history Congress intended defendant to be prosecuted both for conspiring to distribute drugs and for distributing drugs in concert with five or more persons); Simpson v. United States, 435 U.S. 6 (1978) (defendant improperly prosecuted both for committing bank robbery with a firearm and for using a firearm to commit a felony); Bell v. United States, 349 U.S. 81 (1955) (simultaneous transportation of two women across state lines for immoral purposes one violation of Mann Act rather than two). [Back to text]
156
United States v. Broce, 488 U.S. 563 (1989) (defendant who pled guilty to two separate conspiracy counts is barred from collateral attack alleging that in fact there was only one conspiracy and that double jeopardy applied). [Back to text]
157
See Grady v. Corbin, 495 U.S. 508, 518–19 (1990). [Back to text]
158
432 U.S. 161 (1977). Cf. In re Nielsen, 131 U.S. 176 (1889) (prosecution of Mormon for adultery held impermissible following his conviction for cohabiting with more than one woman, even though second prosecution required proof of an additional fact—that he was married to another woman). [Back to text]
159
See also Harris v. Oklahoma, 433 U.S. 682 (1977) (defendant who had been convicted of felony murder for participating in a store robbery with another person who shot a store clerk could not be prosecuted for robbing the store, since store robbery was a lesser-included crime in the offense of felony murder). [Back to text]
160
Illinois v. Vitale, 447 U.S. 410 (1980). [Back to text]
161
Grady v. Corbin, 495 U.S. 508 (1990) (holding that the state could not prosecute a traffic offender for negligent homicide because it would attempt to prove conduct for which the defendant had already been prosecuted—driving while intoxicated and failure to keep to the right of the median). A subsequent prosecution is barred, the Court explained, if the government, to establish an essential element of an offense, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. Id. at 521. [Back to text]
162
United States v. Dixon, 509 U.S. 688, 709 (1993) (applying Blockburger test to determine whether prosecution for a crime, following conviction for criminal contempt for violation of a court order prohibiting that crime, constitutes double jeopardy). [Back to text]
163
The Court suggested that if the legislature had provided that joyriding is a separate offense for each day the vehicle is operated without the owner’s consent, so that the two indictments each specifying a different date on which the offense occurred would have required different proof, the result might have been different, but this, of course, met the Blockburger problem. Brown v. Ohio, 432 U.S. 161, 169 n.8 (1977). The Court also suggested that an exception might be permitted where the State is unable to proceed on the more serious charge at the outset because the facts necessary to sustain that charge had not occurred or had not been discovered. Id. at 169 n.7. See also Jeffers v. United States, 432 U.S. 137, 150–54 (1977) (plurality opinion) (exception where defendant elects separate trials); Ohio v. Johnson, 467 U.S. 493 (1984) (trial court’s acceptance of guilty plea to lesser included offense and dismissal of remaining charges over prosecution’s objections does not bar subsequent prosecution on those “remaining” counts). [Back to text]
164
United States v. Felix, 503 U.S. 378, 389 (1992). The fact that Felix constituted a “large exception” to Grady was one of the reasons the Court cited in overruling Grady. United States v. Dixon, 509 U.S. 688, 709–10 (1993). [Back to text]
165
Witte v. United States, 515 U.S. 389 (1995) (consideration of defendant’s alleged cocaine dealings in determining sentence for marijuana offenses does not bar subsequent prosecution on cocaine charges). [Back to text]
166
Monge v. California, 524 U.S. 721, 728 (1998). [Back to text]
167
See Ashe v. Swenson, 397 U.S. 436, 445 (1970). Collateral estoppel and issue preclusion are synonymous terms. See BLACK’S LAW DICTIONARY 312 (10th ed. 2014) (defining “collateral estoppel”). [Back to text]
168
See RESTATEMENT (SECOND) OF JUDGMENTS § 27 (Am. Law Inst. 1981). [Back to text]
169
397 U.S. at 445. Previously, the Court in Hoag v. New Jersey, concluded that successive trials arising out of a tavern hold-up in which five customers were robbed did not violate the Due Process Clause of the Fourteenth Amendment. See 356 U.S. 464, 466 (1958). [Back to text]
170
397 U.S. at 437. [Back to text]
171
397 U.S. at 439–40. [Back to text]
172
Id. at 446 (quoting Green v. United States, 355 U.S. 184, 190 (1957)). [Back to text]
173
Id. at 444. [Back to text]
174
See Bobby v. Bies, 556 U.S. 825, 834 (2009) (citing RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. h). [Back to text]
175
See United States v. Powell, 469 U.S. 57, 68 (1984). [Back to text]
176
See Dunn v. United States, 284 U.S. 390, 392 (1932). [Back to text]
177
469 U.S. at 68–69. [Back to text]
178
580 U.S. ___, No. 15–537, slip op. at 2 (2016) (“We therefore bracket this case with Powell. . .”). [Back to text]
179
Id. at 9–10. Had the convictions been overturned because of lack of evidence, the government would have been prohibited from retrying the defendants, as a court’s evaluation of the evidence as insufficient to convict is the equivalent to an acquittal and, accordingly, bars reprosecution for that same offense. See Burks v. United States, 437 U.S. 1, 10–11 (1978). [Back to text]
180
See Bravo-Fernandez, slip op. at 17. [Back to text]
181
Id. at 18. [Back to text]
182
Id. at 16. The Bravo-Fernandez Court distinguished the case from Yeager v.United States, 557 U.S. 110 (2009), where the Court held that Powell did not extend to the situation where a jury returned a verdict of acquittal on one count and hung on another count and prosecutors attempted to retry on the hung count. Id. at 124. Because the jury “speaks only though its verdict,” a hung count did not reveal anything about the jury’s reasoning and only the acquittal could factor into the issue preclusion analysis. Id. at 122. Unlike in Yeager, the acquittals in Bravo-Fernandez were accompanied with inconsistent guilty verdicts, leading the Court to conclude that the criminal defendants could not demonstrate that the jury had actually decided the underlying issue at the second trial. See Bravo-Fernandez, slip op. at 16–18. [Back to text]
183
See Bravo-Fernandez, slip op. at 19 (noting that the earlier acquittals “remain inviolate”). [Back to text]