Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P2 ppsx

DOUBLE JEOPARDY A second prosecution for the same offense after acquittal or conviction or multiple punishments for same offense.. Five policy considerations underpin the double jeopardy

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G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 E

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Editorial Reviewers

Patricia B Brecht

Matthew C Cordon

Frederick K Grittner

Halle Butler Hara

Scott D Slick

Contributing Authors

Richard Abowitz

Paul Bard

Joanne Bergum

Michael Bernard

Gregory A Borchard

Susan Buie

James Cahoy

Terry Carter

Stacey Chamberlin

Sally Chatelaine

Joanne Smestad Claussen

Matthew C Cordon

Richard J Cretan

Lynne Crist

Paul D Daggett

Susan L Dalhed

Lisa M DelFiacco

Suzanne Paul Dell’Oro

Heidi Denler

Dan DeVoe

Joanne Engelking

Mark D Engsberg

Karl Finley

Sharon Fischlowitz Jonathan Flanders Lisa Florey Robert A Frame John E Gisselquist Russell L Gray III Frederick K Grittner Victoria L Handler Halle Butler Hara Lauri R Harding Heidi L Headlee James Heidberg Clifford P Hooker Marianne Ashley Jerpbak David R Johnstone Andrew Kass Margaret Anderson Kelliher Christopher J Kennedy Anne E Kevlin

John K Krol Lauren Kushkin Ann T Laughlin Laura Ledsworth-Wang Linda Lincoln

Theresa J Lippert Gregory Luce David Luiken Frances T Lynch Jennifer Marsh George A Milite Melodie Monahan

Sandra M Olson Anne Larsen Olstad William Ostrem Lauren Pacelli Randolph C Park Gary Peter Michele A Potts Reinhard Priester Christy Rain Brian Roberts Debra J Rosenthal Mary Lahr Schier Mary Scarbrough Stephanie Schmitt Theresa L Schulz John Scobey Kelle Sisung James Slavicek Scott D Slick David Strom Linda Tashbook Wendy Tien

M Uri Toch Douglas Tueting Richard F Tyson Christine Ver Ploeg George E Warner Anne Welsbacher Eric P Wind Lindy T Yokanovich

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SeeTRANSPORTATION,DEPARTMENT OF

DOUBLE ENTRY

A bookkeeping system that lists each transaction

twice in the ledger

Double-entry bookkeeping is a method

whereby every transaction is shown as both a

debit and a credit This is done through the use of

horizontal rows and vertical columns of

num-bers The reason for the use of this bookkeeping

method is that if the total of horizontal rows and

vertical columns is not the same, it is easier to

find mistakes than when the records are kept

with only a single entry for each item

DOUBLE INDEMNITY

A term of an insurance policy by which the

insurance company promises to pay the insured

or the beneficiary twice the amount of coverage

if loss occurs due to a particular cause or set of

circumstances

DOUBLE INDEMNITY clauses are found most

often in life insurance policies In the case of the

accidental death of the insured, the insurance

company will pay the beneficiary of the policy

twice itsFACE VALUE Such a provision is usually

financed through the payment of higher

pre-miums than those paid for a policy that entitles

a beneficiary to recover only the face amount of

the policy, regardless of how the insured died

In cases where the cause of death is unclear, the insurance company need not pay the proceeds until the accidental nature of death is sufficiently established by a PREPONDERANCE OF EVIDENCE A beneficiary of such a policy may sue an insurance company for breach of con-tract to enforce his or her right to the proceeds, whenever necessary

DOUBLE INSURANCE Duplicate protection provided when two compa-nies deal with the same individual and undertake

to indemnify that person against the same losses When an individual has DOUBLE INSURANCE,

he or she has coverage by two different insu-rance companies upon the identical interest in the identical subject matter If a husband and wife have duplicate medical insurance coverage protecting one another, they would thereby have double insurance An individual can rarely collect on double insurance, however, because this would ordinarily constitute a form ofUNJUST ENRICHMENT, and a majority of insurance con-tracts contain provisions that prohibit this

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

D (cont.)

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TheFIFTH AMENDMENTto the U.S Constitu-tion 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 theDOUBLE JEOPARDYClause, prohibits state and federal governments from prosecut-ing 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 con-sequences of successive prosecutions; (3) pre-serving the finality and integrity of criminal proceedings, which would be compromised were the state allowed to arbitrarily ignore unsatisfactory outcomes; (4) restricting prose-cutorial 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 inA.D 533

The principle also survived the Dark Ages (A.D 400–1066), notwithstanding the deterioration

of other Greco-Roman legal traditions, through

CANON LAWand 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), andSIR 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 inti-mately 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 def-endants 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 protec-tion apply? (2) When does jeopardy begin, or,

in legal parlance, attach? (3) When does jeopardy terminate? (4) What constitutes suc-cessive 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 ofLEGAL 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

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protection against double jeopardy Some states

offered greater protection against double

jeop-ardy than did others The Court, relying on the

doctrine of incorporation, which makes

funda-mental principles in theBILL OF RIGHTSapplicable

to the states through the EQUAL PROTECTION

Clause of theFOURTEENTH 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

pro-ceedings 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

pro-ceedings 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 civilFORFEITUREor 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 pur-poses when thePLAINTIFFseeking 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 gov-ernment 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 admin-istrative proceedings can be uniformly charac-terized 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

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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

complicat-ed Once jeopardy has terminated, the govern-ment 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 jurispru-dence 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 defen-dant 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-degreeMURDERmay impliedly acquit the defen-dant 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 prosecu-tion 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 defen-dant’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 objec-tion 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 dead-locked jurors, and procedural irregularities willfully occasioned by the defendant Manifest necessity is never established for mistrials resulting from prosecutorial or judicial manipu-lation In determining manifest necessity, courts balance the defendant’s interest in finality against society’s interest in a fair and just legal system

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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

cir-cumstances, 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 ofCAPITAL 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 ACTIONagainst 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

commit-ted 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 prosecu-tors’ discretion over the charging process

The U.S Supreme Court curbed this dis-cretion 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 punish-ments pass muster under the Double Jeopardy Clause But courts have used several other methods to determine whether successive pro-secutions 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 per-mitted 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 prosecu-tions, requires the prosecution to join all offenses that were committed during a contin-uous 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

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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 indi-vidual 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 the driver 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’sNEGLIGENCE

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 na-tional 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 doc-trine, 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 con-victions 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 prosecu-tion by manipulating the criminal justice

Former L.A police

officer Stacey Koon

was acquitted of

criminal charges

in the beating of

motorist Rodney King

but was found guilty

of violating King’s

civil rights in a federal

case.

AP IMAGES

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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 JUSTICEhas developed

an internal restriction on pursuing a prosecution

after state prosecution has failed Federal

prose-cutors under this restriction may only pursue a

second prosecution for compelling reasons, and

thePROSECUTORmust 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

depart-ment’s guidelines

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