DOUBLE JEOPARDY AND THE FIFTH AMENDMENT
Fifth Amendment Protections
"No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb; . . ." Amendment V.
The Fifth Amendment prohibition against trying a criminal defendant twice for the same crime is based on the theory that the state, with all its resources, should try a defendant once and not exhaust the defendant's assets and will to resist with a series of consecutive trials. A judicial interpretation of the Fifth Amendment double jeopardy provision prevents successive punishments for the same crime.
Requirements to Claim Violation
In order to successfully prevail, a defendant must have first been placed in jeopardy prior to the claim that a subsequent prosecution runs afoul of the United States Constitution. Jeopardy has been determined to attach when the judge begins to hear evidence from the first witness in a bench trial and when the jury is empaneled and sworn in a jury trial. Pretrial motions and pretrial dismissals are not considered proceedings during which jeopardy attaches. See, Serfass v. United States, 420 U.S. 377 (1975). For example, if a defendant successfully obtains dismissal of an indictment on technical grounds, a subsequent indictment and trial is not barred since the defendant was never placed in jeopardy. Similarly, a prosecutor could take a case to successive grand juries if the first grand jury failed to return an indictment without encountering any problem concerning initial jeopardy.
Same offense Requirement
Demonstrative of the principle of double jeopardy is United States v. Dixon, v. (1993), Next Lesson. In Dixon, the Court held that the defendant had been subjected to prosecution twice for the same crime. Defendant had been released on pretrial bail and was under a court order to commit no new crimes. While free he was arrested for drug use, a direct violation of his pretrial release. At the end of a lengthy hearing, he was found in criminal contempt of court for his bail violation involving use of cocaine. When he came to trial for his drug offense, Dixon claimed a violation of double jeopardy since the court had already taken judicial action on his most recent drug offense. The Supreme Court ruled in Dixon's favor since the order to commit no new crimes and the subsequent criminal contempt conviction included the same elements as the drug charge. According to the Court, Dixon could be successfully prosecuted if he had committed other violations of law which were not part of the criminal contempt adjudication, but since he had
effectively been once tried on the drug charge, retrial was inconsistent with the prohibitions of the double jeopardy provision.
A second aspect of the prohibition against double jeopardy requires that the government not prosecute a second time for the "same offense." Under current interpretation, a prohibited prosecution would follow where the government obtained a [conviction or acquittal] for robbery and proceeded to try the defendant for armed robbery arising from the same facts as the initial prosecution. The test for determining whether a second prosecution is for the "same offense" involves a consideration of whether each of the two criminal offenses under consideration requires proof of an additional fact or element which the other does not. See Blockburger v. United States, 284 U.S. 299 (1932). Robbery and armed robbery are examples of crimes which could not be prosecuted successively if the charges arose from the same act. Both crimes do not require proof of a fact or element which the other does not and are identical except for the need to prove the presence of a weapon. However, the "same offense" limitation may not be applied to bar a second prosecution for armed robbery where there were two separate victims and two distinct crimes of robbery. Here, each crime requires proof of a fact or element different from the other. The prosecution would have to prove all the elements of robbery for both victims and prove that each victim was a different person.
Collateral Estoppel
Even where there have been several crimes occurring simultaneously or almost together, successive prosecution against a defendant may be barred under the doctrine of collateral estoppel announced in Ashe v. Swenson, 397 U.S. 436 (1970), Next Lesson. In Ashe, several men had been robbed by a person whose identity was not known to the victims. The defendant was prosecuted for the robbery of one of the victims but the jury acquitted him due to insufficient evidence that the defendant was the robber. Subsequently, the government brought the same defendant to trial for robbing a second man on the original occasion. The evidence was similar except the issue of identity was more effectively presented and the jury rendered a guilty verdict. The Supreme Court of the United States reversed the robbery conviction on the theory that the first jury had determined that the defendant was not proven to have been present and that the doctrine of collateral estoppel (part of the double jeopardy clause) prevented the government from requiring the defendant to re-litigate the issue of his identity a second time.
Limitations on Double Jeopardy
The Fifth Amendment prohibition against placing a person in jeopardy more than once is not absolute. In many instances, a defendant waives the right by requesting a mistrial, by appealing a conviction and winning reversal of the original verdict, or by misconduct at trial which forces the judge to declare a mistrial in the interests of justice. However, where the defendant requests a mistrial, the prohibition against double jeopardy generally does not prevent a retrial at a later date. Where defendant did not consent to a mistrial but there existed a manifest necessity for declaring a mistrial, a retrial is not barred. See Illinois v. Somerville, 410 U.S. 458 (1973).
Manifest necessity for granting a mistrial may be said to exist where culpable fault cannot be attributed to either defense or prosecution. If the defendant's courtroom conduct has been such that a fair trial proves
improbable, or the judge dies during the trial, or a fire or earthquake destroys the courthouse, or similar occurrence, double jeopardy will not prohibit a retrial. However, a second trial may be barred where the prosecutor has intentionally injected reversible error into the trial in the hope that the defendant will request a mistrial, giving the prosecutor a chance to bolster a failing case. The interests of the defendant in having a particular jury hear the case are of crucial importance and a prosecutor is not permitted the luxury of ending a case before a jury that the prosecutor believes will favor the defendant. In such a case, where the judge grants a mistrial due to prosecutorial misconduct, retrial generally will be prohibited. In situations where a jury which cannot reach a verdict, a hung jury, the double jeopardy provision does not prevent a retrial of the cause.
The Doctrine of Dual Sovereignty
In a slightly different context, "second" prosecutions are not barred where a defendant's conduct has violated several distinct statutes within the same jurisdiction simultaneously. Criminal defendants have attempted to use the double jeopardy provision to protect them from successive prosecutions in different states where the criminal conduct violated the laws of more than one jurisdiction. For example, See Heath v. Alabama, 474 U.S. 82 (1985), Next Lesson. Heath's homicide crime violated both Georgia and Alabama law. Following his conviction in Georgia for murder of his spouse, Alabama also successfully prosecuted him for his role in the murder of his wife. The Supreme Court of the United States upheld the Alabama conviction against Heath's allegation of a violation of double jeopardy. Under the doctrine of dual sovereignty, where a person's acts have violated the laws of two sovereign states, the defendant has committed two distinct crimes. In Heath's case, both Alabama and Georgia drew their independent authority to punish wrongdoers from sources which predate the existence of the United States. Thus, Heath had not been tried twice for the same crime because the one act of killing his wife was both a crime under Georgia law as well as a crime under Alabama law.
In other contexts where one might assume that double jeopardy would limit successive prosecutions, the theory is inapplicable. Consider the situation where the defendant's conduct violated both state and federal law. A state may charge and either convict [or acquit] a defendant for murder. Later the federal government may prosecute the same defendant for the same acts but contend that the defendant criminally violated the civil rights of the homicide victim. In theory there were two crimes - murder and a criminal violation of the federal civil rights law, and two sovereigns - the state and federal government. Thus, in such a situation, the Double Jeopardy Clause is not implicated and multiple trials are permissible.
Fifth Amendment Double Jeopardy Protection Applies to States
BENTON v. MARYLAND, Supreme Court of the United States (1969), 395 U.S. 784, 89 S.Ct. 2056
FACTS:
Petitioner Benton was tried for burglary and larceny in a state court and convicted of the burglary charge and found innocent of the larceny count. The court sentenced him to ten years in prison. Prior to the time his appeal would have been heard, the Maryland Court of Appeals decided a case which invalidated a portion of the Maryland constitution which had required jurors to swear their belief in the existence of God.
Since both the grand jury which indicted Benton and the petit jury which convicted him had been selected under the invalid constitutional provision, Benton was given an option for re-indictment and retrial. He selected the option and received a new trial which resulted in a conviction for both burglary and robbery. At the second trial, Benton alleged that the Fifth Amendment provision against double jeopardy precluded his being retried on the larceny charge since he had already been acquitted of the charge at the first trial. While the trial court denied Benton's contentions, the issue was properly raised on appeal. The Maryland Court of Special Appeals considered the double jeopardy claim and denied relief. Maryland's highest court refused discretionary review. The Supreme Court granted certiorari.
PROCEDURAL QUESTION:
Does the Fifth Amendment provision prohibiting double jeopardy apply through the Fourteenth Amendment to prevent a state retrial of a count previously tried?
HELD: Yes.
RATIONALE:
Mr. Justice MARSHALL delivered the opinion of the Court.
* * *III
In 1937, this Court decided the landmark case of Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. Palko, although indicted for first-degree murder, had been convicted of murder in the second degree after a jury trial in Connecticut state court. The State appealed and won a new trial. Palko argued that the Fourteenth Amendment incorporated, as against the States, the Fifth Amendment requirement that no person "be subject for the same offense to be twice put in jeopardy of life or limb." The Court disagreed. Federal double jeopardy standards were not applicable against the States. Only when a kind of jeopardy subjected a defendant to "a hardship so acute and shocking that our polity will not endure it," id., at 328, 58 S.Ct., at 153, did the Fourteenth Amendment apply. The order for a new trial was affirmed. . . .
Recently, however, this Court has "increasingly looked to the specific guarantees of the [Bill of Rights] to determine whether a state criminal trial was conducted with due process of law." Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 1922, 18 L.Ed.2d 1019 (1967). In an increasing number of cases, the Court "has rejected the notion that the Fourteenth Amendment applies to the States only a `watered-down, subjective version of the individual guarantees of the Bill of Rights. . . .'" Malloy v. Hogan, 378 U.S. 1, 10-11, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653 (1964). Only last Term we found that the right to trial by jury in criminal cases was "fundamental to the American scheme of justice.," Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968), and held that the Sixth Amendment right to a trial by jury was applicable to the States through the Fourteenth Amendment. For the same reasons, we today find that the double jeopardy prohibition of the Fourteenth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled.
Palko represented an approach to basic constitutional rights which this Court's recent decisions have rejected. It was out of the same cloth as Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), the case which held that a criminal defendant's right to counsel was to be determined by deciding in each case whether the denial of that right was "shocking to the universal sense of justice." Id. at 462, 62 S.Ct., at 1256. It relied upon Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), which held that the right against compulsory self-incrimination was not an element of Fourteenth Amendment due process. Betts was overruled by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799(1963); Twining by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Our recent cases have thoroughly rejected the Palko notion that basic constitutional rights can be denied by the States as long as the totality of the circumstances does not disclose a denial of "fundamental fairness."
Once it is decided that a particular Bill of Rights guarantee is "fundamental to the American scheme of justice," Duncan v. Louisiana, supra, at 149, 88 S.Ct., at 1447, the same constitutional standards apply against both the State and Federal Governments. Palko's roots had thus been cut away years ago. We today only recognize the inevitable.
The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation's independence. See Bartkus v. Illinois, 359 U.S. 121, 151-155, 79 S.Ct. 676, 697, 3 L.Ed.2d 684 (1959) (Black, J., dissenting). As with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries. "[T]he plea of autrefoits acquit, or a former acquittal," he wrote, "is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence." Today, every State incorporates some form of the prohibition in its constitutional or common law. As this Court put it in Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), "[t]he 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." This underlying notion has from the very beginning been part of our constitutional tradition. Like the right to trial by jury, it is clearly "fundamental to the American scheme of justice." The validity of petitioner's larceny conviction must be judged, not by the watered-down standard enunciated in Palko, but under this Court's interpretations of the Fifth Amendment double jeopardy provision.
IV
It is clear that petitioner's larceny conviction cannot stand once federal double jeopardy standards are applied. Petitioner was acquitted of larceny in his first trial. Because he decided to appeal his burglary conviction, he is forced to suffer retrial on the larceny count as well. As this Court held in Green v. United States, supra, at 193-194, 78 S.Ct., at 227, "[c]onditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy."
* * *V
Petitioner argued that his burglary conviction should be set aside as well. He contends that some evidence, inadmissible under state law in a trial for burglary alone, was introduced in the joint trial for both burglary and larceny, and that the jury was prejudiced by this evidence. The question was not decided by the Maryland Court of Special Appeals because it found no double jeopardy violation at all. . . . We do not think that this is the kind of determination we should make unaided by prior consideration by the state courts. Accordingly, we think it "just under the circumstances," 28 U.S.C. Section 2196, to vacate the judgment below and remand for consideration of this question. The judgment is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
Notes
1. In Palko v. Connecticut, 302, U.S. 319 (1937), the issue involved a situation wherein the State tried appellant Palko twice for the identical crime of first-degree murder. The first jury trial resulted in a conviction of second-degree murder and a life sentence. Pursuant to a state statute the presiding trial judge granted permission for the prosecution to appeal the verdict.
Upon proper consideration, the Supreme Court of Errors reversed Palko's conviction on the grounds that the trial judge improperly excluded defendant Palko's confession and evidence relating to his credibility. The Court held that a jury instruction had been given to the prejudice of the state.
Subsequently, Palko stood trial for a second time concerning the same activities for which he had originally been convicted. During this trial, he contended that the retrial subjected him to jeopardy a second time for the same crime in violation of the Fifth Amendment's prohibition against double jeopardy. At the second trial, the jury found him guilty of first-degree murder and the trial judge imposed the sentence of death.
In his appeal from the second conviction, Palko argued that the due process guarantees inherent in the Fourteenth Amendment included a prohibition against double jeopardy. The Supreme Court of the United States disagreed and refused to hold that the essence of the double jeopardy provision should have application against the states through the Due Process Clause of the Fourteenth Amendment. As the Court framed the issue:
Is that kind of double jeopardy to which the statute has subject[ed] him a hardship so acute and shocking that our polity will not endure it? Does it violate those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions?" Herbert v. Louisiana, supra. The answer surely must be "no." What the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him, we have no occasion to consider. "We deal with the statute before us and no other. The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error." (Citations omitted.) This is not cruelty at all, nor even vexation in any immoderate degree.
Connecticut executed Palko for his conviction of first-degree murder, his second conviction for the same crime.
2. In Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055 (1975), petitioner lost his argument that double jeopardy prevented his trial for refusing armed forces induction where the initial indictment had been dismissed prior to a trial and for reasons which did not reach the merits of the case. The Supreme Court held that the double jeopardy protection did not bar a first trial following a prosecutor's successful appeal from a pretrial order dismissing the indictment. The erroneous dismissal was based on the records of the case and an affidavit. In this situation, petitioner had never once been in jeopardy, so there was no merit to his contention that he was being subjected to jeopardy a second time.
3. While the Fifth Amendment provision against double jeopardy protects a defendant from having to stand trial twice for the same offense, the determination of which offense qualifies as the same offense as another has troubled courts for years. In Blockburger v. United States, 284 U.S. 299 (1932), the Court fashioned a test designed to determine when two offenses are different for double jeopardy purposes. Two offenses are separate for double jeopardy purposes if "each provision requires proof of a fact which the other does not." For example, in Brown v. Ohio, 432 U.S. 161 (1977), the Court held that motor vehicle theft and joyriding were part of the same offense since automobile theft was simply joyriding coupled with an intent to permanently deprive. A second prosecution for automobile theft following a prosecution for joyriding violated the Fifth Amendment provision against double jeopardy.
4. In reality, a defendant need not actually have stood trial the first time in order for the double jeopardy clause to have impact on the government's prosecution. In Downum v. United States, 372 U.S. 734 (1963), defendant's jury had been impaneled and sworn when the prosecution informed the court that two witnesses needed by the government were missing. The prosecutor requested that the judge discharge the jury, a request which was granted over the defendant's objection. When the case was recalled and a second jury impaneled, Downum pled former jeopardy. He was convicted of the charges and appealed alleging a violation of double jeopardy. The Supreme Court agreed with Downum and reversed his conviction, saying, "[W]hen the district attorney impaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance." Quoting Cornero v. United States, 48 F.2d 69. Once the jury had taken the oath, the first instance of jeopardy had attached. To try Downum again constituted the second instance of jeopardy and was unconstitutional under the Fifth Amendment.
In a case similar to Downum, United States v. Jorn, 400 U.S. 470 (1971), the trial judge dismissed the jury after it had been sworn because the judge believed that some of the prosecution witnesses did not properly understand their legal rights. On the judge's own motion and without defendant's consent, the trial was aborted. When the retrial was scheduled, Jorn made a motion for dismissal citing former jeopardy which the judge granted. On the government's appeal, the Supreme Court refused to allow a second trial.
5. The government does not violate the defendant's rights under the double jeopardy provision when it seeks to try a defendant who agreed to a plea bargain during jury selection but subsequently breached the agreement. In Ricketts v. Adamson, 493 U.S. 1 (1987), defendant had agreed to fully testify against other defendants charged with capital murder but balked at testifying against them when a second trial proved necessary. The prosecution, pursuant to the plea bargain reinstated defendant's original charges and obtained a conviction and death sentence following a trial. The Court assumed that jeopardy had attached when defendant was initially sentenced under the plea agreement, but held that the parties were placed back in the same position as before the plea bargain once the defendant breached the agreement. The Court upheld the conviction.