DOUBLE JEOPARDY

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

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

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

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

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

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

Mistrials

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

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

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

Multiple punishment

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

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

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

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

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

Second prosecution after conviction

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

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

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

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

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

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

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

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

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

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

Second prosecution after acquittal

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

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

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

Appeals

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

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

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

Lower courts

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

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

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

Dual sovereignty

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

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

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

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

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

George C. Thomas, III

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

BIBLIOGRAPHY

Amar, Akil Reed. "Double Jeopardy Law Made Simple." Yale Law Journal 106 (April 1997): 1807–1848.

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

Cassell, Paul G. "The Rodney King Trial and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU's Schizophrenic Views of the Dual Sovereignty Doctrine." UCLA Law Review 41 (February 1994): 693–720.

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

Guerra, Sandra. "The Myth of Dual Sovereignty: Multijurisdictional Drug Law Enforcement and Double Jeopardy." North Carolina Law Review 73 (March 1995): 1159–1210.

Herman, Susan N. "Double Jeopardy All Over Again: Dual Sovereignty, Rodney King, and the ACLU." UCLA Law Review 41 (February 1994): 609–647.

King, Nancy J. "Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties." University of Pennsylvania Law Review 144 (November 1995): 101–196.

Kirchheimer, Otto. "The Act, the Offense and Double Jeopardy." Yale Law Journal 58 (March 1949): 513–544.

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

Poulin, Anne Bowen. "Collateral Estoppel in Criminal Cases: Reuse of Evidence after Acquittal." University of Cincinnati Law Review 58, no. 1 (1989): 1–57.

——. "Double Jeopardy: Grady and Dowling Stir the Muddy Waters." Rutgers Law Review 43 (summer 1991): 889–931.

Rudstein, David S. "Double Jeopardy and the Fraudulently-Obtained Acquittal." Missouri Law Review 60 (summer 1995): 607–651.

Schulhofer, Stephen J. "Jeopardy and Mistrials." University of Pennsylvania Law Review 125 ( January 1977): 449–539.

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

Shellenberger, James A., and Strazzella, James A. "The Lesser-Included Offense Doctrine and the Constitution: The Development of Due Process and Double Jeopardy Remedies." Marquette Law Review 79 (fall 1995): 1–193.

Strazzella, James A. "The Relationship of Double Jeopardy to Prosecution Appeals." Notre Dame Law Review 73 (November 1997): 1–30.

Thomas, George C., III. "Sentencing Problems Under the Multiple Punishment Doctrine." Villanova Law Review 31 (September 1986): 1351–1428.

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

"Twice in Jeopardy." Yale Law Journal 75 (December 1965): 262–321.

Westen, Peter. "The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences." Michigan Law Review 78 (June 1980): 1001–1065.

Westen, Peter, and Drubel, Richard. "Toward a General Theory of Double Jeopardy." Supreme Court Review (1978): 81–169.

CASES

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

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

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

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

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

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

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

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

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

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

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

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

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

Double Jeopardy

Sections within this essay:

Background

The double jeopardy clause in the Fifth Amendment to the U. S. Constitution prohibits the government from prosecuting individuals more than one time for a single offense and from imposing more than one punishment for a single offense. It provides that "No person shall … be subject for the same offence to be twice put in jeopardy of life or limb." Most state constitutions also guarantee this right to defendants appearing in state court. Even in states that do not expressly guarantee this right in their laws, the protection against double jeopardy must still be afforded to criminal defendants because the Fifth Amendment's Double Jeopardy Clause has been made applicable to state proceedings via the doctrine of incorporation.

Under this doctrine, the Supreme Court has ruled in a series of cases that the Due Process and Equal Protection Clauses of the Fourteenth Amendment guarantee to the citizens of every state the right to exercise certain fundamental liberties. These liberties include, but are not limited to, every liberty set forth in the Bill of Rights, except the Second Amendment right to bear arms, the Third Amendment right against quartering soldiers, the Seventh Amendment right to trial by jury in civil cases, and the Fifth Amendment right to indictment by grand jury.

The concept of double jeopardy is one of the oldest in Western civilization. In 355 B. C. Athenian statesmen Demosthenes said that the "law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest of Justinian in 533 A. D. The principle also survived the Dark Ages (400–1066 A.D.) through the canon law and the teachings of early Christian writers, notwithstanding the deterioration of other Greco-Roman legal traditions.

In England the protection against double jeopardy was considered a universal maxim of the common law and was embraced by eminent jurists Henry de Bracton (1250), Sir Edward Coke (1628), Sir Matthew Hale (1736), and Sir William Blackstone (1769). However, the English double jeopardy doctrine was extremely narrow. It afforded protection only to defendants accused of capital felonies and applied only after conviction or acquittal. It did not apply to cases dismissed prior to final judgment and was not immune to flagrant abuse by the British Crown.

The American colonists were intimately familiar with the writings of Bracton, Coke, and Hale. Copies of Blackstone's Commentaries on English law were available in most of the colonies, and Blackstone's teachings were often quoted by the colonists in support of their claims that Parliament was exceeding its lawful authority.

The colonists were also familiar with how narrowly the right against double jeopardy had been defined in England. During the constitutional convention James Madison sought to enlarge the definition by making the right against double jeopardy applicable to all crimes not just capital felonies. Yet Madison's original draft of the Double Jeopardy Clause was perceived by some as too restrictive. It provided that "No person shall be subject … to more than one punishment or one trial for the same offense" (United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 [1989]). Several House members objected to this wording, arguing that it could be misconstrued to prevent defendants from seeking a second trial on appeal following conviction. Although the language of the Fifth Amendment was modified to address this concern, the final version ratified by the states left other questions for judicial interpretation.

Policy Considerations Underlying the Right Against Double Jeopardy

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

The Common Law Development of the Right Against Double Jeopardy

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

Where Jeopardy Applies

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

In Benton v. Maryland, 39 U.S. 784, 89 S. Ct. 2056, 23 L. Ed.2d 707 (1969), the U. S. Supreme Court ruled that the Fifth Amendment's Double Jeopardy Clause is applicable to both state and federal proceedings. Prior to this ruling, an individual accused of violating state law could rely only on that particular state's protection against double jeopardy. Some states offered greater protection against double jeopardy than did others, and frequently the level of protection offered was less than that offered under the federal Constitution. The Supreme Court said this was impermissible.

Relying on the doctrine of incorporation described above, the Court held that the right against double jeopardy is so important that each state must afford criminal defendants at least the same amount of protection from multiple prosecutions and punishments that is afforded by the federal government under the Fifth Amendment. Consequently, state courts cannot provide their residents with less protection against double jeopardy than is offered by federal courts, though variations in the level of protection offered can still arise when states offer their residents more protection under their state constitutional provisions than is provided under the federal Constitution.

The Supreme Court has also ruled that the right against double jeopardy precludes only subsequent criminal proceedings. It does not preclude subsequent civil proceedings or administrative proceedings (e.g., a license revocation hearing ) against a person who has already been prosecuted for the same act or omission, even if that person is fined in the later civil or administrative proceeding. Nor is prosecution barred by double jeopardy if it is preceded by a final civil or administrative determination on the same issue.

Courts have drawn a distinction between criminal proceedings on the one hand and civil or administrative proceedings on the other, based on the different purposes served by each. Criminal proceedings are punitive in nature and serve the purposes of deterrence and retribution. Civil and administrative proceedings are more remedial in nature. Civil proceedings, for example, seek to compensate injured persons for any losses they have suffered, while administrative proceedings can serve various remedial functions (e.g., license revocation) unrelated to deterrence or retribution. Because civil, administrative, and criminal proceedings serve different objectives, a single course of conduct can give rise to multiple trials in different types of courtrooms.

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

When Jeopardy Attaches

While the differences between civil, criminal, and administrative proceedings are not always perfectly clear, courts have done a much better job of explaining when jeopardy begins, or attaches. This question is crucial because any action taken by the government before jeopardy attaches, such as dismissing the indictment, will not prevent later proceedings against the same person for the same offense. Once jeopardy has attached, the full array of Fifth Amendment protections against multiple prosecutions and multiple punishments takes hold.

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

When Jeopardy Terminates

Determining when jeopardy terminates is no less important than determining when it begins, but it is a little more complicated. Once jeopardy has terminated, the government cannot detain someone for additional court proceedings on the same matter without raising double jeopardy questions. If jeopardy does not terminate at the conclusion of one proceeding, jeopardy is said to be "continuing," and further criminal proceedings are permitted. Jeopardy can terminate in four instances: 1) after acquittal; 2) after dismissal; 3) after a mistrial; and 4) on appeal after conviction.

A jury's verdict of acquittal terminates jeopardy, and verdicts of acquittal cannot be overturned on appeal even if there is overwhelming proof of a defendant's guilt or even if the trial judge committed reversible error in ruling on an issue at some point during the proceedings. This fundamental maxim of double jeopardy jurisprudence entrusts the jury with the power to nullify criminal prosecutions tainted by egregious misconduct on the part of the police, the prosecutor, or the court, a tremendous bulwark against tyranny in a democratic society.

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

Dismissals are granted by the trial court for miscellaneous procedural errors and defects that operate as an absolute barrier to prosecution. For example, the prosecution must establish that a court has jurisdiction over a defendant before prosecution may commence. Failure to establish jurisdiction will normally result in a dismissal upon an objection raised by the defendant. Dismissals may be entered before a jury has been impaneled, during trial, or after conviction. But jeopardy must attach before a dismissal implicates double jeopardy protection.

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

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

Mistrials are granted when it has become impracticable or impossible to finish a case. Courts typically declare mistrials when jurors fail to unanimously reach a verdict. Like dismissals, mistrials declared at the defendant's behest will not terminate jeopardy or bar re-prosecution. Nor will a mistrial preclude re-prosecution when it is declared with the defendant's consent. Courts disagree whether a defendant's mere silence is tantamount to consent.

A different situation is presented when a mistrial is declared over the defendant's objection. Reprosecution will be allowed only if the mistrial resulted from "manifest necessity," a standard more rigorous than "reasonably necessary" and less exacting than "absolutely necessary." A mistrial that could have been reasonably avoided will terminate jeopardy, but jeopardy will continue if the mistrial was unavoidable.

The manifest necessity standard has been satisfied where mistrials have resulted from defective indictments, disqualified or deadlocked jurors, and procedural irregularities willfully occasioned by the defendant. Manifest necessity is not present when mistrials result from prosecutorial or judicial manipulation. In each of these cases, courts balance the defendant's interests in finality against society's interest in a fair and just legal system.

Every defendant has the right to at least one appeal after conviction. If the conviction is reversed on appeal for insufficient evidence, it is treated as an acquittal, and further prosecution is not permitted. However, a defendant may be re-prosecuted when the reversal is not based on lack of evidence. The grounds for such reversals include defective search warrants, unlawful seizure of evidence, and other so-called "technicalities." Retrials in these instances are justified by society's interest in punishing the guilty. Defendants' countervailing interests are subordinated when a conviction rendered by 12 jurors is overturned for reasons unrelated to guilt or innocence.

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

What Constitutes the Same Offense

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

At common law a single episode of criminal behavior produced only one prosecution, no matter how many wrongful acts may have been committed during that episode. But over the last fifty years the proliferation of overlapping and related offenses has made it possible for the government to prosecute someone for several different crimes stemming from the same set of circumstances. For example, an individual who has stolen a car to facilitate an abduction resulting in attempted rape could be separately prosecuted and punished for auto theft, kidnapping, and molestation. This development has significantly enlarged prosecutors' discretion over the charging process.

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

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

The "same transaction" analysis is another means by which courts determine whether successive prosecutions will survive constitutional scrutiny. It requires the prosecution to join all offenses committed during a continuous interval that share a common factual basis and display a single goal or intent. The same transaction test is used by many state courts to bar successive prosecutions for the same offense. However, no federal court has ever adopted it.

Both state and federal courts have employed the "actual evidence" test to preclude successive prosecutions for a single offense. Unlike Blockburger, which examines the statutory elements of proof, the "actual evidence" test requires courts to compare the evidence "actually" introduced during the first trial with the evidence sought to be introduced by the prosecution at the second trial. Criminal offenses are characterized as the same when the evidence necessary to support a conviction for one offense would be sufficient to support a conviction for the other.

Under the "same conduct" analysis the government is forbidden from twice prosecuting an individual for the same criminal behavior, regardless of the actual evidence introduced during trial and regardless of the statutory elements of the offense. For example, this analysis has been applied to prevent prosecuting someone for vehicular homicide resulting from drunk driving, when the defendant had been earlier convicted for driving while under the influence of alcohol. The second prosecution would have been permitted had the state been able to prove the driver's negligence without proof of his intoxication. The U. S. Supreme Court applied this analysis for three years before abandoning it in 1993. However, the "same conduct" analysis is still utilized by some state courts interpreting their own constitutions and statutes.

State Court Decisions Interpreting State Constitutional Provisions Governing Double Jeopardy

The U. S. Constitution and the Supreme Court cases interpreting it establish the minimum amount of protection that a state court must provide when it is interpreting a section of the Bill of Rights that has been made applicable to the states via the doctrine of incorporation, including instances that require a state court to interpret and apply the Double Jeopardy Clause of the Fifth Amendment. A state court interpreting the double jeopardy clause of its own constitution may provide more protection than is afforded by the federal constitution but not less. Below is a sampling of cases decided in part based on a state court's interpretation of its own state constitutional provision governing double jeopardy.

ALABAMA: Reintroduction of two prior convictions at re-sentencing of the defendant for the purpose of enhancement under the Habitual Felony Offender Act did not violate the Double Jeopardy Clauses of the federal or state constitutions, even though the convictions were not certified at original sentencing hearing, where the defendant was put on notice at the original sentencing hearing of the state's intention to offer evidence of his prior felony convictions (see Ex parte Randle, 554 So.2d 1138 (Ala. 1989); AL Const. Art. I, § 9; Alabama Code 1975, §§ 13A-5-9, 13A-5-9(b)(2), (c)(2); U.S.C.A. Const.Amend. 5; Const. § 9).

ARKANSAS: Although both the United States and Arkansas constitutions provide that no person shall be subjected to two punishments based on same offense, remedial civil sanctions may be properly imposed without placing the person in jeopardy (see Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (Ark. 2001); Const.Amend. 5; AR CONST Art. 2, § 8).

ARIZONA: If a mistrial is granted as result of conduct that the prosecutor knew or should have known would prejudice the defendant and that could not be cured short of a mistrial, the double jeopardy clause of the Arizona Constitution bars a retrial (see Beijer v. Adams ex rel. County of Coconino, 196 Ariz. 79, 993 P.2d 1043, (Ariz.App. Div. 1 1999); AZ CONST Art. 2 § 10).

CALIFORNIA: A court-ordered victim restitution imposed for the first time at re-sentencing following appeal and partial reversal of the defendant's murder convictions was not considered a "punishment" and was therefore not barred under California's constitutional double jeopardy provisions (see People v. Harvest, 84 Cal.App.4th 641, 101 Cal.Rptr.2d 135, (Cal.App. 1 Dist., Oct 31, 2000); West's Ann.Cal. Const. Art. 1, § 15; West's Ann.Cal.Penal Code § 1202.4).

FLORIDA: The state's constitutional double jeopardy provision does not prohibit a defendant's retrial when a prior trial has been concluded by mistrial because of a hung jury (see Lebron v. State, 2001 WL 987233, 26 Fla. L. Weekly S553 (Fla. 30, 2001); West's F.S.A. Const. Art. 1, § 9).

GEORGIA: The double jeopardy clause of state constitution does not prohibit additional punishment for a separate offense that the legislature has deemed to warrant a separate sanction (see Mathis v. State, 273 Ga. 508, 543 S.E.2d 712 (Ga. 2001); GA Const. Art. 1, § 1, Par. 18).

ILLINOIS: The protection against double jeopardy afforded by the Illinois Constitution is no greater than that provided by the U. S. Constitution (see People v. Ortiz, 196 Ill.2d 236, 752 N.E.2d 410, 256 Ill.Dec. 530 (Ill. 2001); U.S.C.A. Const.Amend. 5; S.H.A. Const. Art. 1, § 10).

MASSACHUSETTS: The double jeopardy provision of the state constitution was not implicated by reuse of evidence of drunk driving at the defendant's trial on the charge of vehicular homicide by negligent operation, even though the defendant was acquitted in the first-tier trial on drunk driving charges, since in the state's two-tier trial system the defendant remained in continuing jeopardy with regard to other offenses for which he was originally convicted (see Commissioner v. Woods, 414 Mass. 343, 607 N.E.2d 1024 (Mass. 1993); M.G.L.A. c. 218, § 26A).

MICHIGAN: Convictions and punishments for involuntary manslaughter and operating a motor vehicle while under the influence of intoxicating liquor (OUIL) causing death do not violate the Double Jeopardy Clauses of the federal or state constitutions, since the offenses protect distinct societal norms, and the statute defining each offense requires proof of an element that the other does not (see People v. Kulpinski, 243 Mich.App. 8, 620 N.W.2d 537 (Mich.App. 2000); U.S.C.A. Const.Amend. 5; M.C.L.A. Const. Art. 1, § 15; M.C.L.A. §§ 257.625(4), 750.321).

MINNESOTA: Forfeiture of a motorist's vehicle after he had been convicted and sentenced for misdemeanor driving while intoxicated (DWI ) was not double punishment in violation of the state constitution's double jeopardy clause, since the motorist provided no basis for reading the state double jeopardy clause more broadly than its federal counterpart in the context of DWI-related vehicle forfeitures (see Johnson v. 1996 GMC Sierra, 606 N.W.2d 455 (Minn.App. 2000); M.S.A. Const. Art. 1, § 7; M.S.A. § 169.1217).

NEW YORK: Defendant's re-prosecution for first-degree criminal contempt after being found guilty on the lesser charge of second-degree criminal contempt violated the Double Jeopardy Clauses of both the federal and state constitutions, where the defendant's trial was originally on both charges and the defendant was convicted on the second-degree charge only after a partial mistrial was declared as to the first-degree charge (People v. Campbell, 269 A.D.2d 460, 703 N.Y.S.2d 498 (N.Y.A.D. 2 Dept. 2000); U.S.C.A. Const.Amends. 5, 14; McKinney's Const. Art. 1, § 6).

TEXAS: A defendant's conviction for assault of a public servant did not violate the double jeopardy provisions of either the federal or state constitutions, even though the defendant had already received prison discipline for the same incident, since prison sanctions are not considered "punishment" for the purposes of double jeopardy analysis (see Rogers v. State, 44 S.W.3d 244 (Tex.App. 2001); U.S.C.A. Const.Amend. 5; Vernon's Ann.Texas Const. Art. 1, § 14).

Additional Resources

American Jurisprudence. Lawyers Co-operative Publishing Company, 2001.

Criminal Procedure. Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, West Group, 2001.

http://supreme.lp.findlaw.com/constitution/amendment05/02.htmlFindLaw: Double Jeopardy, 2001.

Oxford Companion to the Supreme Court. Kermit Hall, ed., Oxford University Press, 1992.

West's Encyclopedia of American Law. West Group, 1998.

Organizations

American Civil Liberties Union (ACLU)

1400 20th St., NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
E-Mail: info@aclu.org
URL: http://www.aclu.org/
Primary Contact: Anthony D. Romero, Executive Director

Association of Federal Defense Attorneys

8530 Wilshire Blvd., Suite 404
Beverly Hills, CA 90211 USA
Phone: (714) 836-6031
Fax: (310) 397-1001
E-Mail: AFDA2@AOL.com
URL: http://www.afda.org
Primary Contact: Gregory Nicolaysen, Dir.

National District Attorneys Association (NDAA)

99 Canal Center Plaza
Alexandria, VA 22314 USA
Phone: (703) 549-9222
Fax: (703) 836-3195
URL: http://www.ndaa.org
Primary Contact: Thomas J. Charron, Dir.

DOUBLE JEOPARDY

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

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

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

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

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

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

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

Where Jeopardy Applies

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

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

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

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

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

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

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

When Jeopardy Attaches

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

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

When Jeopardy Terminates

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

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

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

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

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

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

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

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

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

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

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

What Constitutes the Same Offense

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

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

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

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

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

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

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

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

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

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

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

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

further readings

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

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

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

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

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

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

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

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

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

DOUBLE JEOPARDY

Double jeopardy is the most ancient procedural guarantee provided by the American bill of rights. Rooted in Greek, Roman, and canon law, the right not to be put twice in jeopardy may be regarded as essential to a right to trial by jury, and is well established in the law of other nations.

The Fifth Amendment of the Constitution includes the simple phrase: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Yet this phrase, which has been copied in most American state constitutions, conceals a number of complex policy issues, many of which are still unsettled in American law in spite of numerous judicial interpretations since its birth in 1791.

In the course of time American courts abandoned any insistence that the jeopardy required involve a risk of life or limb, even though that had been an important consideration under the harsh criminal law of eighteenth-century England. Thus, the policy underlying the double jeopardy protection does not depend upon the hazard of severe physical punishment or death.

The English common law recognizes the pleas of autrefois acquit (former acquittal) and autrefois convict (former conviction) to preclude retrial of an accused person, but American law has taken a more expansive view of the right. In America a prior accusation without a verdict could result in a successful plea of double jeopardy. The American version of the right is more generous to accused persons in many other respects, making double jeopardy an important potential source of protection.

In Green v. United States (1957) Justice hugo l. black provided a persuasive explanation of the American concept of double jeopardy. He suggested that the guarantee against double jeopardy is aimed primarily at three potential abuses of governmental power: "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 (1) subjecting him to embarrassment, expense and ordeal and (2) compelling him to live in a continuing state of anxiety and insecurity, as well as (3) enhancing the possibility that even though innocent he may be found guilty."

Double jeopardy policy embodies a conflict between a defendant's interest in "being able once and for all, to conclude his confrontation with society," as the Court said in United States v. Jorn (1970), and the public interest in a full and accurate prosecution. To preclude retrial of an accused person on some technical defect in the presentation of the prosecution's case is not in the public interest. Conversely, individuals must be protected against repeated risks of criminal punishment so that they may conclude their confrontation with society in a just manner and resume their normal lives as free citizens.

Surprisingly, it was not until 1969 that the Supreme Court extended the Fifth Amendment's double jeopardy prohibition to state criminal prosecutions. In benton v. maryland (1969) the Court finally held "that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage." Since then the Court has been deeply involved in reviewing double jeopardy questions, refining and reconsidering many of its earlier interpretations of the clause. Now the Supreme Court is the chief source of policymaking in double jeopardy matters, although some state legislatures have begun to reexamine the doctrine in the process of revising state criminal codes to eliminate overlapping criminal offenses.

Double jeopardy law involves at least four distinct policy questions. The first concerns the time when jeopardy begins or "attaches." Clearly, pretrial proceedings are not covered by double jeopardy, but at some point after a trial opens jeopardy is said to "attach." The second double jeopardy question is the legal significance to be accorded political boundaries such as statefederal, statemunicipal, nationalinternational. Third is the problem arising from the numerous definitions of crime which sometimes carve up criminal deeds into small parcels of criminalized behavior. These multiple offense categories could give rise to multiple prosecutions unless bounded by the double jeopardy protection. Finally, there is the issue raised by a criminal appeal (by the defendant or the state) with its potential of a new trial reviving the same risks to the liberty of the defendant.

All these issues are embraced within the American doctrine of double jeopardy and none has been definitively resolved. American double jeopardy law has become one of the most complex areas of judicial policymaking. English law on the subject lacks the complexity of American law because it is confined largely to the issue of the effect of a prior final judgment. American law is distinctive in its subtle interplay among the interests of the accused person, the prosecution, and the society at large. However, American double jeopardy law is confused by the judicial failure to separate the strands of double jeopardy and to pursue the essential purposes served by double jeopardy. Indeed, close reading of Supreme Court decisions reveals some conflict among the Justices concerning the goals of double jeopardy policy.

In Crist v. Betz (1978) the issue of attachment of double jeopardy was called "the lynchpin for all double jeopardy jurisprudence," but it still is not clearly settled. The federal rule is that jeopardy attaches at the time when the jury is sworn, and this federal rule now extends to state proceedings as well. The rule takes effect when the first witness is sworn in a case tried before a judge. After this point, in the absence of exceptional circumstances, the defendant's jeopardy begins, and it cannot be begun again merely because the prosecution wishes to retry a stronger case at a later time.

However, it is possible for the prosecution to retry a case that has been aborted short of final judgment if it can bear the heavy burden of showing "manifest necessity" for repetitious proceedings. Courts have wrestled vainly in an effort to define the nature of the "manifest necessity" that justifies reprosecution. Recently the Supreme Court has developed a balancing test to weigh the interests of the prosecution and the defendant. Now, if a mistrial is based upon an error by the state that could be manipulated to strengthen the prosecution's case, a defendant is entitled to immunity from reprosecution if he chooses to oppose the mistrial, but not if he requests it. But the Supreme Court has wavered in its mistrial decisions, even overruling itself at times.

Attachment doctrines apply to juvenile proceedings as well as to adult criminal trials, so that jeopardy attaches to an adjudicatory finding in juvenile court, preventing a subsequent trial in the criminal court for the same conduct. However, a closed master's hearing for a juvenile has been treated as a pretrial event, not an attachment of jeopardy.

The clearest interpretation of double jeopardy policy appears in the area of separate prosecutions for the same offense by federal and state governments. According to bartkus v. illinois (1959), double jeopardy is inapplicable when a defendant is charged with having violated the laws of two or more different "sovereigns." Yet, after a barrage of criticism of the Supreme Court ruling, the attorney general adopted a policy of avoiding federal reprosecution of a matter already tried by a state where the state prosecution rested upon the same act or acts. This discretionary policy remains an administrative restraint upon federal prosecution. In 1970 the Supreme Court held in Waller v. Florida that a state and its municipalities were not "separate sovereigns" in this sense; successive prosecutions thus were barred by the double jeopardy clause.

The most complex and least settled area of double jeopardy involves the meaning of "same offense" in the Fifth Amendment clause. The basic federal rule does not prohibit imposition of two or more punishments for the same activity. Instead, the Supreme Court has largely left it to the Congress and the state legislatures to carve up a single act or series of acts into an appropriate set of criminal offenses. The possibility of fragmentation of a single act into a number of criminal offenses with separate trials for each generally is not an occasion for judges to invoke the double jeopardy protection, although the Supreme Court has made some limited attempts to do so.

The double jeopardy clause is not a barrier to an appeal by the prosecution in a criminal case. The government may appeal decisions in a criminal case only if authorized by statute. Since the organized crime control act of 1970, which grants the right to appeal a sentence imposed upon a "dangerous special offender," reviews of sentences are available to the federal government. The Supreme Court has held in United States v. DiFrancesco (1980) that the increase of a sentence on review under this statute does not constitute multiple punishment in violation of the double jeopardy clause. Whenever a defendant appeals from his own conviction he is usually said to have "waived" his right to plead double jeopardy.

Taken together, double jeopardy doctrines appear still to be somewhat unsettled in the United States. The general contours of double jeopardy have been described since 1969 in increasing detail. Yet inconsistencies and uncertainties continue. This most ancient of American rights is subject to judicial balancing. Increasingly, the balance has been more favorable to the prosecution, contracting the generous scope of double jeopardy evident in earlier years. Since the Supreme Court has been deeply divided on double jeopardy issues we may expect continued developments of policy with changes in judicial personnel. States may have more stringent views of double jeopardy policy under their own double jeopardy provisions. Therefore some states may set higher standards than the Supreme Court for the protection of defendants.

Jay a. sigler
(1986)

Bibliography

Friedland, Martin 1969 Double Jeopardy. Oxford: Clarendon Press.

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

Westin, Peter and Drubel, Richard 1979 Toward a General Theory of Double Jeopardy. Supreme Court Review 1978:81–169.

DOUBLE JEOPARDY

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

Smith v. Massachusetts

The Fifth Amendment's Double Jeopardy Clause bars a person from being prosecuted twice for substantially the same crime. Although in English common law this protection applied only to criminal charges on which a jury had rendered a verdict, the U.S. Supreme Court has expanded the reach of double jeopardy by applying it to acquittals made by judges as well. In Smith v. Massachusetts, __U.S. __, __S.Ct. __, __ L.Ed.2d __ 2005 WL 405476 (2005), the Court pushed the constitutional protection even further, ruling that a judge who acquitted a defendant of one of three charges midway through a jury trial could not rescind this decision later in the trial.

Melvin Smith went to trial in Massachusetts Superior Court, charged with armed assault with intent to murder; assault and battery by means of a dangerous weapon; and unlawful possession of a firearm. The last charge required the prosecution to prove that the weapon had a barrel less than 16 inches long. The victim of Smith's assault testified that Smith had shot him with a revolver that "appeared to be a .32 or .38" caliber. No other evidence was elicited about the firearm. After the prosecution rested its case, the defense attorney moved the judge to dismiss the firearms possession charge because the state had failed to prove that the gun barrel was less than 16 inches long. The trial judge agreed and dismissed the charge, directing the court clerk to write into the record the motion and the court's granting of it.

Following the presentation of the defense's case and before final arguments, the prosecutor informed the judge about a state court ruling that had said that a general description about a revolver was sufficient to establish that it was less than 16 inches long. The judge, seeing that she was mistaken in her earlier ruling, announced orally that she was "reversing" her decision and allowing the charge to be considered by the jury. The jury convicted Smith on all three charges. He appealed the firearms possession charge on double jeopardy grounds. The Appeals Court of Massachusetts affirmed the ruling, finding that the trial judge's correction had not forced Smith to undergo a second prosecution or proceeding. In addition, the court held that the judge's ruling was not final under the state rules of criminal procedure . The Supreme Judicial Court of Massachusetts denied Smith's petition for further appellate review, but the U.S. Supreme Court agreed to review the double jeopardy issue.

The high court, in a 5-4 decision, overturned the conviction and held that the judge's ruling during the trial granting the motion of dismissal had been an acquittal. Justice Antonin Scalia, in his majority opinion, noted that there is only one exception to the Double Jeopardy Clause when a judge acquits a defendant: when a jury's verdict of guilty is set aside by a judge and a judgment of acquittal is entered, the state has the right to appeal the case and seek to have the jury verdict of guilty reinstated. Turning to the Massachusetts trial, Justice Scalia first examined whether the trial judge's ruling was a judgment of acquittal. The state rules of criminal procedure directed the trial judge to enter a finding of not guilty "if the evidence is insufficient as a matter of law to sustain a conviction." An order that executes such a finding represents a resolution, "correct or not," that constitutes an acquittal. Scalia rejected the state's contention that the neither the jury nor the judge had made a final factual determination about the size of the gun barrel at the time the judge granted the motion, finding that the judgment of acquittal was a "substantive determination that the prosecution has failed to carry its burden."

Though it was clear the judge had acquitted Smith of the charge, the Court still needed to determine whether the Double Jeopardy Clause allowed the judge to reconsider the acquittal once both sides had rested their cases. Scalia pointed out that the prosecutor had not made a motion to have the decision reconsidered later in the proceedings and that he had told the judge that he had no further evidence to introduce. The finality of the ruling in this case was clear, but Scalia acknowledged that, in general, state law may permit a judge to reconsider midtrial rulings. However, Massachusetts did not provide for such reconsideration either by court rule or judicial decision. The rules of criminal procedure only permitted the correction of clerical errors. In this case, the seeming finality of the decision created the possibility of prejudice against the defendant, for the defense might change strategy by making a claim "that entails admission of guilt on the acquitted count." If the judge were to reconsider the prior ruling of acquittal, the defendant's admission would lead to a guilty verdict.

Justice Ruth Bader Ginsburg, in a dissenting opinion joined by Chief Justice William Rehnquist and Justices Anthony Kennedy and Stephen Breyer, contended that Smith had not suffered any prejudice in his particular case because of the trial judge's error. Ginsburg noted that the judge had corrected her ruling the same day it was made and before closing arguments. Smith was not denied the opportunity to make his defense before the jury began its deliberations.