Double Jeopardy Clause

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."[9] Acquittal by directed verdict is also final and cannot be appealed by the prosecution.[10] An acquittal in a trial by judge (bench trial) is also generally not appealable by the prosecution.[11] 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."[12] Res judicata is a term of general application. Underneath that conceptual umbrella is the concept of collateral estoppel. As applied to double jeopardy, the court will use collateral estoppel as its basis for forming an opinion.

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 offenses". 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, 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.[13]

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.[14]

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."[15]

This case did, in effect, overrule a preceding per curiam decision, that of Brantley v. Georgia.[16] 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.[17]

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". 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.[17]

Noting that the murder charge may have poisoned the jury against Price, the Supreme Court vacated the voluntary manslaughter conviction and remanded the case.

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 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.[18] 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, and that subsequently has been reversed on appeal or vacated in a collateral proceeding (such as habeas corpus) 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 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.

If a defendant appeals a conviction and is successful in having it overturned, the defendant may be subject to retrial.

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, the Court held that "it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient."[19]

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, who was tried and acquitted in 1977 in Cook County, Illinois 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.[20]

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:

In the constitutional sense, jeopardy describes the risk that is traditionally associated with criminal prosecution.[21]

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.[22]

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.[23]

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.[24]

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.

Mistrials 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. 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."[25]

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, 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.[26]

Double jeopardy also does not apply if the later charge is civil rather than criminal in nature, which involves a different legal standard (crimes must be proven beyond a reasonable doubt, whereas civil wrongs need only be proven by preponderance of evidence or in some matters, clear and convincing evidence). 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 operates within the civil court system). For example, O. J. Simpson was acquitted of a double homicide in a California criminal prosecution, but lost a civil wrongful death claim brought over the same victims.[27]

Defendants happening to be on parole 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 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 are subject to the same law of double jeopardy, since the Uniform Code of Military Justice has incorporated all of the protections of the U.S. Constitution. The non-criminal proceeding 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, killer of Wild Bill Hickok. 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.

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.

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 has a policy called the Petite policy, named after Petite v. United States.[43] The formal name of the policy is "Dual and Successive Prosecution Policy"[44] 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 (18 U.S.C. § 1111). 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):

1. incompetence, corruption, intimidation, or undue influence
2. court or jury nullification in clear disregard of the evidence or the law
3. 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
4. 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
5. 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:

1. 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
2. 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:

1. The alleged violation involves a compelling federal interest, particularly one implicating an enduring national priority.
2. 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
3. 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. 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.[45]