The Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution
The Fifth Amendment (Amendment V) to the United States Constitution addresses criminal procedure and other aspects of the Constitution. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights. The Fifth Amend ...
provides: ''"
r shall any person be subject for the same offence to be twice put in jeopardy of
life
Life is a quality that distinguishes matter that has biological processes, such as signaling and self-sustaining processes, from that which does not, and is defined by the capacity for growth, reaction to stimuli, metabolism, energ ...
or
limb
Limb may refer to:
Science and technology
*Limb (anatomy), an appendage of a human or animal
*Limb, a large or main branch of a tree
*Limb, in astronomy, the curved edge of the apparent disk of a celestial body, e.g. lunar limb
*Limb, in botany, ...
..."''
The four essential protections included are prohibitions against, for the same offense:
*retrial after an acquittal;
*retrial after a conviction;
*retrial after certain mistrials; and
*multiple punishment
Jeopardy attaches in jury trial when the jury is empaneled and sworn in, in a bench trial when the court begins to hear evidence after the first witness is sworn in, or when a court accepts a defendant's plea unconditionally. Jeopardy does not attach in a retrial of a conviction that was reversed on appeal on procedural grounds (as opposed to evidentiary insufficiency grounds), in a retrial for which "manifest necessity" has been shown following a mistrial, and in the seating of another grand jury if the prior one refuses to return an indictment.
"Same offense"
In ''
United States v. Felix
''United States v. Felix'', 503 U.S. 378 (1992), was a decision by the United States Supreme Court, which held that "a €¦offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes." The Supreme Court re ...
'', the
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
ruled: "a
..
offense and a
conspiracy
A conspiracy, also known as a plot, is a secret plan or agreement between persons (called conspirers or conspirators) for an unlawful or harmful purpose, such as murder or treason, especially with political motivation, while keeping their agree ...
to commit that offense are not the same offense for double jeopardy purposes."
Sometimes the same conduct may violate different statutes. If all elements of a lesser offense are relied on to prove a greater offense, the two crimes are the "same offense" for
double jeopardy
In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare case ...
purposes, and the doctrine will bar the second prosecution. This ruling in ''Felix'' distinguished between the test in ''Blockburger'' and the ruling in ''
Grady v. Corbin
''Grady v. Corbin'', 495 U.S. 508 (1990), was a United States Supreme Court decision holding that: "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the gove ...
'' regarding the "same conduct" vs "same offense" test, which was later overruled and completely reverted back to ''Blockburger'' in ''
United States v. Dixon
''United States v. Dixon'', 509 U.S. 688 (1993), was a decision of the Supreme Court of the United States, United States Supreme Court concerning double jeopardy. The case overruled ''Grady v. Corbin'' (1990) and revived the traditional Blockburger ...
''. In ''
Blockburger v. United States
''Blockburger v. United States'', 284 U.S. 299 (1932), was a case in which the Supreme Court of the United States set an important standard to prevent double jeopardy.
Background
The defendant was charged with violations of the Harrison Narcotics ...
'', the Supreme Court held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not". The test was applied in ''
Brown v. Ohio'', where the defendant had first been convicted of operating an automobile without the owner's consent, and later of stealing the same automobile. The Supreme Court concluded that the same evidence was necessary to prove both offenses, and that in effect there was only one offense. Therefore, it overturned the second conviction.
In other cases, the same conduct may constitute multiple offenses under the same statute, for instance where one robs many individuals at the same time. There is no explicit bar to separate prosecutions for different offenses arising under the same "criminal transaction", but it is not permissible for the prosecution to re-litigate facts already determined by a jury. In ''
Ashe v. Swenson
''Ashe v. Swenson'', 397 U.S. 436 (1970), was a decision by the United States Supreme Court, which held that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the s ...
'', the defendant was accused of robbing seven
poker
Poker is a family of comparing card games in which players wager over which hand is best according to that specific game's rules. It is played worldwide, however in some places the rules may vary. While the earliest known form of the game w ...
players during a game. John Ashe was first tried for, and acquitted of, robbing only one of the players; the defense did not contest that a robbery actually took place. The state then tried the defendant for robbing the second player; stronger identification evidence led to a conviction. The Supreme Court, however, overturned the conviction. It was held that in the first trial, since the defense had not presented any evidence that there was no robbery, the jury's acquittal had to be based on the conclusion that the defendant's alibi was valid. Since one jury had held that the defendant was not present at the crime scene, the State could not re-litigate the issue.
"Twice put in jeopardy"
Retrial after acquittal
Once acquitted, a defendant may not be retried for the same offense: "A verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense." Acquittal by directed verdict is also final and cannot be appealed by the prosecution. An acquittal in a trial by judge (bench trial) is also generally not appealable by the prosecution. A trial judge may normally enter an acquittal if he deems the evidence insufficient for conviction. If the judge makes this ruling before the jury reaches its verdict, the judge's determination is final. If, however, the judge overrules a conviction by the jury, the prosecution may appeal to have the conviction reinstated. Although a judge may overrule a guilty verdict by a jury, a judge does not have the same power to overrule a not guilty verdict.
More specifically, as stated in ''Ashe'', "...when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." ''Res judicata'' is a term of general application. Underneath that conceptual umbrella is the concept of
collateral estoppel
Collateral estoppel (CE), known in modern terminology as issue preclusion, is a common law estoppel doctrine that prevents a person from relitigating an issue. One summary is that, "once a court has decided an issue of fact or law necessary to its ...
. As applied to double jeopardy, the court will use collateral ''estoppel'' as its basis for forming an opinion.
Implied acquittals
Every charge has specific facts that must be proven beyond reasonable doubt to secure a conviction. And it is not unusual for a prosecutor to charge a person with "
lesser included offense
In criminal law, a lesser included offense is a crime for which all of the elements necessary to impose liability are also elements found in a more serious crime. It is also used in non-criminal violations of law, such as certain classes of tr ...
s". An oft-mentioned combination is first- and second-degree murder, with second-degree murder being the lesser offense. A person convicted on the lesser charge can never again be tried on the greater charge. If the conviction on the lesser charge is overturned, the greater charge does not then come back into play.
The Supreme Court ruled as such in ''
Green v. United States
Green is the color between cyan and yellow on the visible spectrum. It is evoked by light which has a dominant wavelength of roughly 495570 nm. In subtractive color systems, used in painting and color printing, it is created by a combina ...
'', establishing the doctrine of "implied acquittal". Everett Green had been tried on charges of arson and first and second degree murder in the U.S. District Court for the District of Columbia. He was convicted on arson and the lesser offense of second degree murder. The verdict was silent on the greater offense. His conviction was overturned due to the appellate court deciding there wasn't enough evidence, remanding for a new trial. At the second trial, he was tried again with arson, first and second degree murder, convicted on the greater offense and sentenced to death.
He appealed, claiming the second trial should not have included the greater offense under the Double Jeopardy Clause. The D.C. Circuit Court rejected the claim. The Supreme Court of the United States overruled, stating that Green was acquitted of first degree murder and, under the Fifth Amendment, could not be retried on that charge.
At Green's first trial, the jury was authorized to find him guilty of either first degree murder (killing while perpetrating a felony) or, alternatively, of second degree murder (killing with malice aforethought). The jury found him guilty of second degree murder, but, on his appeal, that conviction was reversed and the case remanded for a new trial. At this new trial, Green was tried again, not for second degree murder, but for first degree murder, even though the original jury had refused to find him guilty on that charge and it was in no way involved in his appeal. For the reasons stated hereafter, we conclude that this second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution.
That the jury did not explicitly return an acquittal on first degree murder in its verdict is immaterial:
In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: "We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree."
This case did, in effect, overrule a preceding per curiam decision, that of ''
Brantley v. Georgia''. In that case, the lesser charge was voluntary manslaughter and the greater charge was murder. Brantley was convicted on the lesser charge, but was convicted on the greater charge at retrial after the conviction was overturned. He appealed, arguing the inclusion of the greater charge at retrial violated the Double Jeopardy Clause. The Supreme Court rejected that argument: "It was not a case of twice in jeopardy under any view of the Constitution of the United States."
The Supreme Court explicitly overruled Brantley in another, near-identical case, ''
Price v. Georgia'':
While the Brantley holding may have had some vitality at the time the Georgia courts rendered their decisions in this case, it is no longer a viable authority and must now be deemed to have been overruled by subsequent decisions of this Court.['' Price v. Georgia'', .]
The lesser and greater offenses in ''Price'' are identical to ''Brantley'', with both being convicted on the lesser offense, and retried on the same charges as in the original trial after the conviction is overturned. Unlike Brantley, Price was convicted again on the lesser offense of voluntary manslaughter and given a similar sentence. Price appealed that conviction. The State of Georgia contended that since Price was not convicted on the greater offense at retrial, which was the case in ''Brantley'', the second indictment constituted "
harmless error
In United States law, a harmless error is a ruling by a trial judge that, although mistaken, does not meet the burden for a losing party to reverse the original decision of the trier of fact on appeal, or to warrant a new trial. Harmless error ...
". The Supreme Court rejected that idea:
The Double Jeopardy Clause, as we have noted, is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly. Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence.
Noting that the murder charge may have poisoned the jury against Price, the Supreme Court vacated the voluntary manslaughter conviction and remanded the case.
Non-final judgments
As double jeopardy applies only to charges that were the subject of an earlier ''final'' judgment, there are many situations in which it does not apply, despite the appearance of a retrial. For example, a second trial held after a
mistrial
In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, w ...
does not violate the double jeopardy clause because a mistrial ends a trial prematurely without a judgment of guilty or not, as was decided by the Supreme Court in ''
United States v. Perez''. Cases
involuntarily dismissed because of insufficient evidence may constitute a final judgment for these purposes, though many state and federal laws allow for substantially limited prosecutorial appeals from these orders. Also, a retrial after a conviction that had been set aside upon a motion for
new trial
A new trial or retrial is a recurrence of a court case. A new trial may potentially be ordered for some or all of the matters at issue in the original trial. Depending upon the rules of the jurisdiction and the decision of the court that ordered ...
, and that subsequently has been reversed on appeal or vacated in a collateral proceeding (such as ''
habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'') would not violate double jeopardy, for the judgment in the first trial had been invalidated. In all of these cases, however, the previous trials do not entirely vanish. Testimony from them may be used in later retrials, such as to impeach contradictory testimony given at any subsequent proceeding.
Prosecutors may appeal when a trial judge sets aside a jury verdict for conviction with a
judgment notwithstanding verdict
Judgment notwithstanding the verdict, also called judgment ''non obstante veredicto'', or JNOV, is a type of judgment as a matter of law that is sometimes rendered at the conclusion of a jury trial. In U.S. federal civil court cases, the term has b ...
for the defendant. A successful appeal by the prosecution would simply reinstate the jury verdict and so would not place the defendant at risk of another trial.
Reversal for procedural error
If a defendant appeals a conviction and is successful in having it overturned, the defendant may be subject to retrial.
Insufficiency
Retrial is not possible if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults. As noted above, if the trial court made a determination of evidentiary insufficiency, the determination would constitute a final acquittal; in ''
Burks v. United States
''Burks v. United States'', 437 U.S. 1 (1978), is a United States Supreme Court decision that clarified both the scope of the protection against double jeopardy provided by the Fifth Amendment to the United States Constitution and the limits of a ...
'', the Court held that "it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient."
Fraud
If the earlier trial is a fraud, double jeopardy will not prohibit a new trial because the party acquitted has prevented themselves from being placed into jeopardy to begin with. One such case is the trial of
Harry Aleman
Harry "The Hook" Aleman (January 19, 1939 – May 15, 2010) was a Chicago mobster who was one of the most feared enforcers for the Chicago Outfit during the 1970s. Aleman got the nickname "Hook" from his boxing career in high school. He is also ...
, who was tried and acquitted in 1977 in
Cook County, Illinois
Cook County is the most populous county in the U.S. state of Illinois and the second-most-populous county in the United States, after Los Angeles County, California. More than 40% of all residents of Illinois live within Cook County. As of 20 ...
for the September 1972 death of William Logan. Nearly 20 years later, two persons under Federal Witness Protection came forward to state that Aleman murdered Logan and another individual, and also bribed the trial judge to return an acquittal.
Following on the new evidence, the Cook County State's Attorney in December 1993 filed new charges alleging Aleman killed William Logan, an identical allegation for which Aleman had been previously acquitted. He was convicted on that charge and sentenced to 100 to 300 years in prison. He appealed that conviction and the indictment, challenging that the second prosecution was barred under the Double Jeopardy Clause. The Seventh Circuit disagreed, stating first that "jeopardy denotes risk", citing ''
Breed v. Jones
A breed is a specific group of domestic animals having homogeneous appearance (phenotype), homogeneous behavior, and/or other characteristics that distinguish it from other organisms of the same species. In literature, there exist several slight ...
'':
In the constitutional sense, jeopardy describes the risk that is traditionally associated with criminal prosecution.
And also citing ''Serfass'':
Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy․ In particular, it has no significance in this context unless jeopardy has once attached and an accused has been subjected to the risk of conviction.
The Seventh Circuit declared that, in rejecting the Double Jeopardy claim, even with the slight risk of conviction following the bribe, Aleman still nullified any legitimate risk:
Aleman may be correct that some risk of conviction still existed after Judge Wilson agreed to fix the case, but it cannot be said that the risk was the sort "traditionally associated" with an impartial criminal justice system.
Grand juries and double jeopardy
The Double Jeopardy Clause of the Fifth Amendment does not attach in a grand jury proceeding, or bar a grand jury from returning an indictment when a prior grand jury has refused to do so.
Retrial after conviction
A person who is convicted of one set of charges cannot in general be tried on additional charges related to the crime unless said additional charges cover new facts against which the person in question has not yet been acquitted or convicted. The test that determines whether this can occur is the
''Blockburger'' test.
An example of this are the charges of "conspiring to commit murder" and "murder". Both charges typically have facts distinct from each other. A person can be charged with "conspiring to commit murder" even if the murder never actually takes place if all facts necessary to support the charge can be demonstrated through evidence. Further, a person convicted or acquitted of murder can, additionally, be tried on conspiracy as well if it has been determined after the conviction or acquittal that a conspiracy did, in fact, take place.
Retrial after mistrial
Mistrial
In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, w ...
s are generally not covered by the double jeopardy clause. If a judge dismisses the case or concludes the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial as was addressed in ''
Perez''. When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in
bad faith
Bad faith (Latin: ''mala fides'') is a sustained form of deception which consists of entertaining or pretending to entertain one set of feelings while acting as if influenced by another."of two hearts ... a sustained form of deception whic ...
. In ''
Oregon v. Kennedy'', the Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion."
Multiple punishments
The defendant may not be punished twice for the same offense. In certain circumstances, however, a sentence may be increased. It has been held that sentences do not have the same "finality" as acquittals, and may therefore be reviewed by the courts.
The prosecution may not seek capital punishment in the retrial if the jury did not impose it in the original trial. The reason for this exception is that before imposing the death penalty the jury has to make several factual determinations and if the jury does not make these it is seen as the equivalent of an acquittal of a more serious offense.
In ''
Arizona v. Rumsey
Arizona ( ; nv, Hoozdo Hahoodzo ; ood, AlÄ áąŁonak ) is a U.S. state, state in the Southwestern United States. It is the list of U.S. states and territories by area, 6th largest and the list of U.S. states and territories by population, 14 ...
'', a judge had held a separate hearing after the jury trial to decide if the sentence should be death or life imprisonment, in which he decided that the circumstances of the case did not permit death to be imposed. On appeal, the judge's ruling was found to be erroneous. However, even though the decision to impose life instead of death was based on an erroneous interpretation of the law by the judge, the conclusion of life imprisonment in the original case constituted an acquittal of the death penalty and thus death could not be imposed upon a subsequent trial. Even though the acquittal of the death penalty was erroneous in that case, the acquittal must stand.
Double jeopardy also does not apply if the later charge is civil rather than criminal in nature, which involves a different legal standard (
crime
In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definit ...
s must be proven beyond a
reasonable doubt
Beyond a reasonable doubt is a legal standard of proof required to validate a criminal conviction in most adversarial legal systems. It is a higher standard of proof than the balance of probabilities standard commonly used in civil cases, becau ...
, whereas
civil wrongs need only be proven by
preponderance of evidence
In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...
or in some matters,
clear and convincing evidence
In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...
). Acquittal in a criminal case does not prevent the defendant from being the defendant in a civil suit relating to the same incident (though ''
res judicata
''Res judicata'' (RJ) or ''res iudicata'', also known as claim preclusion, is the Latin term for "a matter decided" and refers to either of two concepts in both civil law and common law legal systems: a case in which there has been a final judgm ...
'' operates within the
civil court
Civil law may refer to:
* Civil law (common law), the part of law that concerns private citizens and legal persons
* Civil law (legal system), or continental law, a legal system originating in continental Europe and based on Roman law
** Private la ...
system). For example,
O. J. Simpson was acquitted of a
double homicide in a
California
California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...
criminal prosecution, but lost a civil
wrongful death claim
Wrongful death claim is a claim against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute. In wrongful death cases, survivors are compensated for the harm, l ...
brought over the same victims.
Defendants happening to be on
parole
Parole (also known as provisional release or supervised release) is a form of early release of a prison inmate where the prisoner agrees to abide by certain behavioral conditions, including checking-in with their designated parole officers, or ...
from an earlier offense at the time may also be the subject of a parole violation hearing, which is not considered to be a criminal trial. Since parolees are usually subject to restrictions not imposed on other citizens, evidence of actions that were not deemed to be criminal by the court may be re-considered by the parole board. This legal board could deem the same evidence to be proof of a parole violation. Most states' parole boards have looser rules of evidence than is found in the courts – for example,
hearsay
Hearsay evidence, in a legal forum, is testimony from an under-oath witness who is reciting an out-of-court statement, the content of which is being offered to prove the truth of the matter asserted. In most courts, hearsay evidence is inadmis ...
that had been disallowed in court might be considered by a parole board. Finally, like civil trials parole violation hearings are also subject to a lower standard of proof so it is possible for a parolee to be punished by the parole board for criminal actions that they were acquitted of in court.
In the American military,
courts-martial
A court-martial or court martial (plural ''courts-martial'' or ''courts martial'', as "martial" is a postpositive adjective) is a military court or a trial conducted in such a court. A court-martial is empowered to determine the guilt of memb ...
are subject to the same law of double jeopardy, since the
Uniform Code of Military Justice
The Uniform Code of Military Justice (UCMJ, 10 U.S.C. §§ 801–946 is the foundation of military law in the United States. It was established by the United States Congress in accordance with the authority given by the United States Constitution ...
has incorporated all of the protections of the U.S. Constitution. The non-criminal proceeding
non-judicial punishment
Non-judicial punishment (or NJP) is any form of punishment that may be applied to individual military personnel, without a need for a court martial or similar proceedings.
United States
In the United States Armed Forces, non-judicial punishment ...
(or NJP) is considered to be akin to a civil case and is subject to lower standards than a court-martial, which is the same as a civilian court of law. NJP proceedings are commonly used to correct or punish minor breaches of military discipline. If a NJP proceeding fails to produce conclusive evidence, however, the commanding officer (or ranking official presiding over the NJP) is not allowed to prepare the same charge against the military member in question. In a court-martial, acquittal of the defendant means he is protected permanently from having those charges reinstated.
The most famous American court case invoking the claim of double jeopardy is probably the second murder trial in 1876 of
Jack McCall
John McCall (); (1852/1853 – March 1, 1877), also known as "Crooked Nose" or "Broken Nose Jack", was the murderer of Old West legend Wild Bill Hickok. McCall shot Hickok from behind as he played poker at Nuttal & Mann's Saloon in Deadwood, D ...
, killer of
Wild Bill Hickok
James Butler Hickok (May 27, 1837August 2, 1876), better known as "Wild Bill" Hickok, was a folk hero of the American Old West known for his life on the frontier as a soldier, scout, lawman, gambler, showman, and actor, and for his involvement ...
. McCall was acquitted in his first trial, which Federal authorities later ruled to be illegal because it took place in an illegal town,
Deadwood, then located in South Dakota Indian Territory. At the time, Federal law prohibited all except Native Americans from settling in the Indian Territory. McCall was retried in Federal Indian Territorial court, convicted, and hanged in 1877. He was the first person ever executed by Federal authorities in the
Dakota Territory
The Territory of Dakota was an organized incorporated territory of the United States that existed from March 2, 1861, until November 2, 1889, when the final extent of the reduced territory was split and admitted to the Union as the states of No ...
.
Double jeopardy also does not apply if the defendant was never tried from the start. Charges that were dropped or put on hold for any reason can always be reinstated in the future—if not barred by some
statute of limitations
A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In m ...
.
Incorporation
Although the Fifth Amendment initially applied only to the federal government, the
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
has ruled that the double jeopardy clause applies to the
states as well through
incorporation by the
Fourteenth Amendment.
Dual sovereignty doctrine
The double jeopardy clause generally doesn't protect a person from being prosecuted by both a state government and the United States federal government for the same act, nor does it protect a person from being prosecuted by multiple states for the same act. Because United States law considers each of the State governments to be distinct from the federal government of the United States as a whole, with its own laws and court systems, these parallel prosecutions are considered to be different "offenses" under the double jeopardy clause, and the decisions of one government on what to prosecute or not prosecute can't be considered binding on the other. This is known as the "dual sovereignty" or "separate sovereigns" doctrine.
The earliest case at the Supreme Court of the United States to address the matter is ''
Fox v. Ohio
The Taney Court (the Supreme Court of the United States under Chief Justice Roger B. Taney, 1836–1864) heard thirty Criminal law of the United States, criminal law cases, approximately one per year. Notable cases include ''Prigg v. Pennsylvania ...
'' in 1847, in which the petitioner, Malinda Fox, was appealing a conviction of a state crime of passing a counterfeit silver dollar. The power to coin money is granted exclusively to Congress, and it was argued that Congress's power precludes the power of any State from prosecuting any crimes pertaining to the money, an argument the Supreme Court rejected in upholding Fox's conviction.
A case that followed on ''Fox'' is ''
United States v. Cruikshank'', in which the Supreme Court stated that the government of the United States is a separate sovereign from any State:
This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.
In 1920 the United States was fresh into the
Prohibition Era
Prohibition is the act or practice of forbidding something by law; more particularly the term refers to the banning of the manufacturing, manufacture, storage (whether in barrels or in bottles), transportation, sale, possession, and consumption ...
. In one prosecution that occurred in
Washington state
Washington (), officially the State of Washington, is a state in the Pacific Northwest region of the Western United States. Named for George Washington—the first U.S. president—the state was formed from the western part of the Washington ...
, a defendant named Lanza was charged under a Washington statute and simultaneously under a United States statute, with the federal indictment stating several facts also stated in the Washington indictment. The Supreme Court addressed the question of the Federal government and a State government having separate prosecutions on the same facts in ''
United States v. Lanza'':
We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.
It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government (''Barron v. City of Baltimore'', 7 Pet. 243), and the double jeopardy therein forbidden is a second prosecution under authority of the federal government after a first trial for the same offense under the same authority. (EDITOR'S NOTE: the ''Barron'' precedent was superseded 35 years later by the 14th Amendment)
This separation of sovereignty is seen with the separate Federal and State trials of convicted
Oklahoma City bombing
The Oklahoma City bombing was a domestic terrorist truck bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, United States, on April 19, 1995. Perpetrated by two anti-government extremists, Timothy McVeigh and Terry N ...
co-conspirator
Terry Nichols
Terry Lynn Nichols (born April 1, 1955) is an American domestic terrorist who was convicted of being an accomplice in the Oklahoma City bombing. Prior to his incarceration, he held a variety of short-term jobs, working as a farmer, grain elevato ...
. Terry Nichols and
Timothy McVeigh
Timothy James McVeigh (April 23, 1968 – June 11, 2001) was an American domestic terrorist responsible for the 1995 Oklahoma City bombing that killed 168 people, 19 of whom were children, injured more than 680 others, and destroyed one-third o ...
were tried and convicted in Federal Court, with Nichols sentenced to life in prison with no possibility of parole, and McVeigh sentenced to death and later executed. While the building was owned by the Federal government, serving as branch locations for multiple Federal agencies, the Federal government had criminal jurisdiction only over 8 of the 168 confirmed deaths. With the express intent of seeing Nichols also sentenced to death, while contemplating the same for McVeigh if his death sentence was overturned on appeal, the State of Oklahoma filed charges against Terry Nichols.
There may also be Federal laws that call other facts into question beyond the scope of any State law. A state may try a defendant for murder, after which the Federal government might try the same defendant for a Federal crime (perhaps a civil rights violation or a kidnapping) connected to the same act. The officers of the
Los Angeles Police Department
The Los Angeles Police Department (LAPD), officially known as the City of Los Angeles Police Department, is the municipal police department of Los Angeles, California. With 9,974 police officers and 3,000 civilian staff, it is the third-large ...
who were charged with assaulting
Rodney King
Rodney Glen King (April 2, 1965June 17, 2012) was an African American man who was a victim of police brutality. On March 3, 1991, he was beaten by Los Angeles Police Department (LAPD) officers during his arrest after a pursuit for driving whi ...
in 1991 were acquitted by a jury of the
Superior Courts of California
Superior courts in California are the state trial courts with general jurisdiction to hear and decide any civil or criminal action which is not specially designated to be heard in some other court or before a governmental agency. As mandated by t ...
, but some were later convicted and sentenced in Federal court for violating King's civil rights. Similar legal processes were used for prosecuting racially motivated crimes in the
Southern United States
The Southern United States (sometimes Dixie, also referred to as the Southern States, the American South, the Southland, or simply the South) is a geographic and cultural region of the United States of America. It is between the Atlantic Ocean ...
in the 1960s during the time of the
Civil Rights Movement
The civil rights movement was a nonviolent social and political movement and campaign from 1954 to 1968 in the United States to abolish legalized institutional Racial segregation in the United States, racial segregation, Racial discrimination ...
, when those crimes had not been actively prosecuted, or had resulted in acquittals by juries that were thought to be racist or overly sympathetic with the accused in local courts.
Federal jurisdiction may apply because the defendant is a member of the armed forces or the victim(s) are armed forces members or dependents. U.S. Army Master Sergeant
Timothy B. Hennis was acquitted on retrial in
North Carolina
North Carolina () is a state in the Southeastern region of the United States. The state is the 28th largest and 9th-most populous of the United States. It is bordered by Virginia to the north, the Atlantic Ocean to the east, Georgia and So ...
for the
1985 murders of Kathryn Eastburn (31 y.o.) and her daughters, Kara (5 y.o.) and Erin (3 y.o.), stabbed to death in their home near
Fort Bragg, North Carolina
Fort Bragg is a military installation of the United States Army in North Carolina, and is one of the largest military installations in the world by population, with around 54,000 military personnel. The military reservation is located within Cum ...
. Two decades later, Hennis was recalled to active duty,
court-martial
A court-martial or court martial (plural ''courts-martial'' or ''courts martial'', as "martial" is a postpositive adjective) is a military court or a trial conducted in such a court. A court-martial is empowered to determine the guilt of memb ...
ed by the Army for the crime, convicted, and sentenced again to death. Richard Dieter, executive director of the
Death Penalty Information Center
The Death Penalty Information Center (DPIC) is a non-profit organization based in Washington, D.C., that focuses on disseminating studies and reports related to the death penalty. Founded in 1990, DPIC is primarily focused on the application of c ...
, observed of this case, "Certainly, no one
n the US
N, or n, is the fourteenth letter in the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''en'' (pronounced ), plural ''ens''.
History
...
has been exonerated and then returned to death row for the same crime except Hennis." Hennis challenged jurisdiction under the Double Jeopardy Clause on appeal to the United States Army Court of Criminal Appeals, which rejected the challenge.
Furthermore, as ruled in ''
Heath v. Alabama
''Heath v. Alabama'', 474 U.S. 82 (1985), is a case in which the Supreme Court of the United States, United States Supreme Court ruled that, because of the doctrine of "dual sovereignty" (the concept that the United States and each U.S. state, stat ...
'', the "separate sovereigns" rule allows two states to prosecute for the same criminal act. For example, if a man stood in New York and shot and killed a man standing over the border in Connecticut, both New York and Connecticut could charge the shooter with murder.
In order for a state to have jurisdiction to prosecute a criminal act, either the action directly resulting in consequences such as death or injury must occur while the perpetrator is in the state and/or the consequences must occur in the state. For example, if a man piloting an airplane took off from New York, flew to Connecticut and while flying over Connecticut committed a murder by dropping something from the aircraft, the only two sovereigns able to prosecute would be Connecticut and the federal government (due to the murder taking place from an aircraft) - New York would lack jurisdiction since no criminal act would have been perpetrated from there. But if the same man while still in New York remotely piloted a
drone
Drone most commonly refers to:
* Drone (bee), a male bee, from an unfertilized egg
* Unmanned aerial vehicle
* Unmanned surface vehicle, watercraft
* Unmanned underwater vehicle or underwater drone
Drone, drones or The Drones may also refer to:
...
using the cellular network and used that vehicle to commit the murder in Connecticut, then ''three'' separate sovereigns could prosecute the murder (New York, Connecticut and the federal government due to the use of the unmanned aircraft as well as interstate telecommunications).
Only the states and tribal jurisdictions are recognized as possessing a separate sovereignty, whereas
territories of the United States
Territories of the United States are sub-national administrative divisions overseen by the federal government of the United States. The various American territories differ from the U.S. states and Indian reservation, tribal reservations as ...
, the military and naval forces, and the capital city of
Washington, D.C.
)
, image_skyline =
, image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
, are exclusively under Federal sovereignty. Acquittal in the court system of any of these entities would therefore preclude a re-trial (or a court-martial) in any court system under Federal jurisdiction.
The dual sovereignty nature of the Double Jeopardy Clause was reheard as part of ''
Gamble v. United States
''Gamble v. United States'', No. 17-646, 587 U.S. ___ (2019), was a United States Supreme Court case about the separate sovereignty exception to the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, which allows bot ...
'', decided in June 2019. The Supreme Court upheld the nature of dual sovereignty between federal and state charges in a 7–2 decision.
''Petite'' policy
Though the Supreme Court of the United States has recognized the dual sovereignty doctrine as an exception to double jeopardy, the United States will not exercise its dual sovereignty power on everyone who becomes subject to it. As a self-imposed limitation on its dual sovereignty power, the
United States Department of Justice
The United States Department of Justice (DOJ), also known as the Justice Department, is a federal executive department of the United States government tasked with the enforcement of federal law and administration of justice in the United State ...
has a policy called the ''Petite'' policy, named after ''
Petite v. United States
Vincent Aycocho, or better known as Petite is a Filipino actor, comedian, singer and TV show host. He is known for as a Filipino comedian in ''Comedy Bar (Philippine TV series), Comedy Bar'', Punch line and Clowns, together with their other cele ...
''. The formal name of the policy is "Dual and Successive Prosecution Policy" and it "establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding."
Under this policy, the Department of Justice presumes that any prosecution at the State level for any fact applicable to any Federal charge vindicates any Federal interest in those facts, even if the outcome is an acquittal. As an example, a person who commits murder within the jurisdiction of a State is subject to that State's murder statute and the United States murder statute (). The Federal government will defer to the State to prosecute under their statute. Whatever the outcome of the trial, acquittal or conviction, the Department of Justice will presume that prosecution to vindicate any Federal interest and will not initiate prosecution under the United States Code.
However that presumption can be overcome. The policy stipulates five criteria that may overcome that presumption (particularly for an acquittal at the State level):
# incompetence, corruption, intimidation, or undue influence
# court or
jury nullification
Jury nullification (US/UK), jury equity (UK), or a perverse verdict (UK) occurs when the jury in a criminal trial gives a not guilty verdict despite a defendant having clearly broken the law. The jury's reasons may include the belief that the ...
in clear disregard of the evidence or the law
# the unavailability of significant evidence, either because it was not timely discovered or known by the prosecution, or because it was kept from the trier of fact's consideration because of an erroneous interpretation of the law
# the failure in a prior state prosecution to prove an element of a state offense that is not an element of the contemplated federal offense
# the exclusion of charges in a prior federal prosecution out of concern for fairness to other defendants, or for significant resource considerations that favored separate federal prosecutions
The presumption may be overcome even when a conviction was achieved in the prior prosecution in the following circumstances:
# If the prior sentence was manifestly inadequate in light of the federal interest involved and a substantially enhanced sentence—including forfeiture and restitution as well as imprisonment and fines—is available through the contemplated federal prosecution, or
# If the choice of charges, or the determination of guilt, or the severity of sentence in the prior prosecution was affected by the sorts of factors listed in the previous list. An example might be a case in which the charges in the initial prosecution trivialized the seriousness of the contemplated federal offense, for example, a state prosecution for assault and battery in a case involving the murder of a federal official.
The presumption also may be overcome, irrespective of the result in a prior state prosecution, in those rare cases where the following three conditions are met:
# The alleged violation involves a compelling federal interest, particularly one implicating an enduring national priority.
# The alleged violation involves egregious conduct, including that which threatens or causes loss of life, severe economic or physical harm, or the impairment of the functioning of an agency of the federal government or the due administration of justice, and
# The result in the prior prosecution was manifestly inadequate in light of the federal interest involved.
The existence of any of these criteria is to be determined by an
Assistant Attorney General of the United States
Many of the divisions and offices of the United States Department of Justice are headed by an assistant attorney general.
The president of the United States appoints individuals to the position of assistant attorney general with the advice and ...
. If a prosecution is determined to have proceeded without authorization, the Federal government may and has requested the Court vacate an indictment. Such a move is in line with the Courts vacating indictments wherein prosecutions were discovered to have violated Department of Justice policy. Indictments have also been vacated when the Federal government first represents to the Court the prosecution was authorized but later determines that authorization to have been mistaken.
['']Thompson v. United States
Thompson may refer to:
People
* Thompson (surname)
* Thompson M. Scoon (1888–1953), New York politician
Places Australia
*Thompson Beach, South Australia, a locality
Bulgaria
* Thompson, Bulgaria, a village in Sofia Province
Canada
* ...
'', .
References
External links
*Adler, Adam J.
Dual Sovereignty, Due Process, and Duplicative Punishment: A New Solution to an Old ProblemArchive. ''
The Yale Law Journal
The ''Yale Law Journal'' (YLJ), known also as the ''Yale Law Review'', is a student-run law review affiliated with the Yale Law School. Published continuously since 1891, it is the most widely known of the eight law reviews published by students ...
''. Volume 124 (2014-2015), No. 2 (November 2014), p. 248-575.
*Colangelo, Anthony J.
DOUBLE JEOPARDY AND MULTIPLE SOVEREIGNS: A JURISDICTIONAL THEORY Archive.
Washington University Law Review
The ''Washington University Law Review'' is a bimonthly law review published by students at Washington University School of Law
Washington University in St. Louis School of Law (WashULaw) is the law school of Washington University in St. Louis ...
. 2009, Volume 86, Issue 4, p. 769-857.
*Hsin, JD S
When Does Double Prosecution Count as Double Jeopardy? Congressional Research Service
The Congressional Research Service (CRS) is a public policy research institute of the United States Congress. Operating within the Library of Congress, it works primarily and directly for members of Congress and their committees and staff on a c ...
. August 16, 2018.
{{Fifth Amendment crimpro, jeopardy, state=expanded
*
United States constitutional criminal procedure
Clauses of the United States Constitution