Amdt5.3.5 Re-Prosecution After Conviction

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

A basic purpose of the Double Jeopardy Clause is to protect a defendant “against a second prosecution for the same offense after conviction.” 1 It is “settled” that “no man can be twice lawfully punished for the same offense.” 2 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.3 Double jeopardy issues involving re-prosecution ordinarily arise, therefore, only in the context of successful defense appeals and controversies over punishment.

Generally, a defendant who is successful in having his conviction set aside on appeal may be tried again for the same offense, on the grounds that defendants “waived” objections to further prosecution by appealing.4 An exception to this rule exists, however, when a defendant tried for one offense is convicted of a lesser offense and succeeds in having that conviction set aside. In Green v. United States,5 the defendant had been tried for first-degree murder but convicted of second-degree murder. The Court held that, following reversal of that conviction, the defendant could not be tried again for first-degree murder, on the theory that the first verdict was an implicit acquittal of the first-degree murder charge.6 The defendant could, however, be re-tried for second-degree murder.7

Another exception to the “waiver” theory involves appellate reversals grounded on evidentiary insufficiency. Thus, in Burks v. United States,8 the appellate court set aside the defendant’s conviction on the basis that the prosecution had failed to rebut defendant’s proof of insanity. The Court explained that the Double Jeopardy Clause foreclosed the prosecution from having 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—as opposed to the sufficiency of the evidence—retrial is permitted.9 Also, the Burks rule does not bar re-prosecution following a reversal based on erroneous admission of evidence, even if the remaining properly admitted evidence would be insufficient to convict.10

North Carolina v. Pearce, 395 U.S. 711, 717 (1969). back
Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874). back
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
United States v. Ball, 163 U.S. 662 (1896). The English rule precluded a new trial in these circumstances, and circuit Justice Joseph Story adopted that view. United States v. Gilbert, 25 F. Cas. 1287 ( No. 15204) (C.C.D.Mass. 1834). The history is briefly surveyed in Justice Felix Frankfurter’s dissent in Green v. United States, 355 U.S. 184, 200–05 (1957). back
355 U.S. 184 (1957). back
The decision necessarily overruled Trono v. United States, 199 U.S. 521 (1905), although the Court purported to distinguish the decision. Green, 355 U.S. at 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
See Green, 355 U.S. at 190. back
437 U.S. 1 (1978). back
Tibbs v. Florida, 457 U.S. 31 (1982). The decision was 5-4, 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
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