Understanding Double Jeopardy and Acquittal in Criminal Procedure

1. CRIMINAL PROCEDURE Class Fourteen

2. Today’s Topics • Overview: “Protections” • Impact of Acquittal • D’s Appeal • Second Trial of Convicted D • “Same Offense” • D Responsible

3. Today’s Topics • Collateral Estoppel • Dual Sovereigns • Aborted Proceedings • Vindictiveness

4. Double Jeopardy Chapter Twelve

5. Constitutional Provision • Fifth Amendment • [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb • Applicable to state prosecutions [Incorporation Doctrine] in 1969

6. Common Fact Patterns • Second prosecution after acquittal • Second prosecution after conviction • Multiple punishments

7. Acquittal Consequences for Prosecution • Second prosecution barred -- even if acquittal was a mistake • No appeal from acquittal -- even if rulings supporting acquittal were incorrect • No new trial from jury verdict of acquittal

8. Determining if Court Action = Acquittal • United States v. Scott • Final determination of guilt/innocence necessary • Contrast with mistrial • Contrast with dismissal

9. Determining if Court Action = Acquittal • Sanabria v. United States • Trial judge believed he was construing indictment and ruling on merits • United States v. Martin Lemon • If trial judge enters judgment of acquittal before jury reaches verdict, that determination is final

10. Defendant’s Appeal • Issue: What is the double jeopardy effect of a reversal? • Concept: Results vary depending on the ground on which reversal is based [sufficiency vs. trial error]

11. Reversal: Insufficient Evidence • Issue: Does it make a difference whether it is reviewing court or trial court/jury that determines evidence is insufficient • Remember: Finding of insufficient evidence at trial = verdict of acquittal • Burks v. United States • Jeopardy interest: Prohibits prosecution from another opportunity to supply or muster evidence it failed to provide in first case

12. Sufficiency vs. Trial Error • Reversal for trial error does not equate to decision that gov’t failed to prove its case • Implies nothing about guilt/innocence • Is determination that D has been convicted through process that is defective • Therefore, no jeopardy bar for retrial

13. Balancing Interests • D has strong interest in fair determination of guilt free from fundamental error • Society has valid interest in ensuring guilty are punished.

14. Reversal: Trial Court Error • Considering “improper” evidence in gauging sufficiency • Issue: What impact when legally competent evidence is insufficient but trial judge erroneously allowed incompetent evidence to be introduced at trial [and the resulting combination was sufficient] • Lockhart v. Nelson • Defective charging instrument • Montana v. Hall

15. Reversal: Trial Court Error • Weight v. Sufficiency • Tibbs v. Florida

16. Second Trial of Convicted D • Concept: Following valid conviction, the same offense cannot be prosecuted again • Problem: Determining what is the same offense • Examples: lesser included offense [think: aggravated robbery with gun, non-weapon robbery]; closely related offenses [think: speeding and failure to use turn signal in same transaction] • Analytical Key: Blockburger Rule

17. Blockburger Test • Asks whether each statutory provision contains an element the other does not

18. Crime One A B C Crime Two A B D Blockburger

19. Blockburger Examples • Brown v. Ohio • Joyriding as lesser included of auto theft • Second conviction violated double jeopardy • Grady v. Corbin • Now abandoned “same conduct” test • Constitutional detour

20. Blockburger Examples • United States v. Dixon • Criminal contempt & possession drugs • Rutledge v. United States • Elements of conspiracy and “in concert” aspect of CCE [continuing criminal enterprise]

21. Separate Crime One A B C Crime Two A B D Same Crime One A B C Crime Two A B C Lesser Included Crime One A B C Crime Two A B Recap: Blockburger Application

22. Remedy for Violations • Frequently, reversal and dismissal of results in second prosecution • “Reformation” • Morris v. Matthews [reduced to conviction for lesser included offense] • D burden: “reasonable probability would not have been convicted of non-jeopardy barred offense absent presence of jeopardy-barred offense”

23. When D Responsible for Multiple Prosecutions • Concept: If D is responsible for multiple prosecutions, double jeopardy limitation not applicable • Jeffers v. United States [D opposed government attempt to consolidate] • Cf, Rutledge • Ohio v. Johnson [D chose over gov’t objection to split offenses] • Caution: As matter of state law, later trial might raise question of cumulative punishments

24. Collateral Estoppel

25. Collateral Estoppel: Background • Multiple victims = multiple offenses • May be circumstances when even separate trials on distinct offenses are constitutionally barred --- when cases have ultimate fact in common • Constitutional basis: Due Process clause

26. Accused defendants 1 2 3 4 Criminal conduct Robbery Car theft Crime Victims 1 2 3 4 5 6 Total possible charges per defendant: 7 Ashe v. Swenson: The Facts

27. Ashe Facts • Trial One [Victim X] • Gov’t evidence that D had been one of robbers was weak • Jury returns verdict of not guilty • Verdict recites: “not guilty due to insufficient evidence” • Trial Two [Victim Y] • Six weeks later

28. Collateral Estoppel • Principle: when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit

29. Determining “Ultimate Fact” • Consider • Pleadings • Evidence at trial • Charge [jury instruction] • Other relevant matter • Conclude whether a rational jury could have granted its verdict on an issue other than the fact on which D seeks to foreclose future litigation

30. Dual Sovereigns

31. Constitutional Protection • When Double Jeopardy prohibits successive prosecutions, it does so only when those prosecutions are brought by the same sovereign • Dual Sovereign = possibility of dual prosecutions • Theory: each sovereign has been offended • Inherent in American Federalism

32. Examples • Rodney King • Angleton prosecution in Houston

33. Limitations • If one sovereign acting as “tool” of another --- sham, or cover • Bartkus v. Illinois • Current event update: Supreme Court is considering issue this term

34. Test Your Knowledge • Is a state a separate sovereign from the federal government? • Is city separate sovereign from state in which it is located? • Are individual states in the Union dual sovereigns vis a vis one another? • Are Indian nations separate sovereign [recent Supreme Court decision]?

35. Aborted Proceedings

36. Scenarios • Trial ends prematurely • Mistrial declared • Examples: • Prosecutor improperly comments on D’s failure to testify and D seeks mistrial • Prosecution’s key witness fails to appear in response to subpoena • Jury is deadlocked and cannot reach verdict

37. Key Terms • “Attachment” • “Manifest Necessity”

38. Attachment • Jury trial • When jury empaneled and sworn • Bench trial [to the court] • When court begins to hear evidence

39. Mistrial over D’s Objection • Critical concept: Manifest necessity • General rule: If there is manifest necessary, then there is exception to double jeopardy protections • Test: Manifest necessity exists when end of public justice are not served if there is no retrial

40. Mistrial on D’s Motion • Generally, no double jeopardy bar • Exception: conduct by prosecutor intended to “goad” D into moving for mistrial

41. Vindictiveness • Issue: What, if any, limitations are imposed on courts and prosecutors when a case is retried. • Example: More time added to second sentence following successful appeal. • Query: Is D being punished for exercising her right to appeal.

42. Vindictiveness • Courts • North Carolina v. Pearce • Presumption of vindictiveness; can be overcome • Prosecutors • Presumption