Indictment by Grand Jury
      Double Jeopardy
      Development and Scope
      Reprosecution Following Mistrial
      Reprosecution Following Acquittal
            Acquittal by Jury
            Acquittal by the Trial Judge
            Trial Court Rulings Terminating Trial Before Verdict
      Reprosecution Following Conviction
            Reprosecution After Reversal on Defendant's Appeal Sentence Increases
      ``For the Same Offence''
            Legislative Discretion as to Multiple Sentences
            Successive Prosecutions for ``The Same Offense''
            The ``Same Transaction'' Problem
      Self-Incrimination
      Development and Scope
      The Power to Compel Testimony and Disclosure
            Immunity
            Required Records Doctrine
            Reporting and Disclosure
      Confessions: Police Interrogation, Due Process, and Self-Incrimination
            The Common Law Rule
            McNabb-Mallory Doctrine
      State Confession Cases
            From the Voluntariness Standard to Miranda
            Miranda v. Arizona
      The Operation of the Exclusionary Rule
            Supreme Court Review
            Procedure in the Trial Courts
      Due Process
      History and Scope
            Scope of the Guaranty
      Procedural Due Process
            Generally
            Administrative Proceedings: A Fair Hearing
            Aliens: Entry and Deportation
            Judicial Review of Administrative Proceedings
      Substantive Due Process
            Discrimination
            Congressional Police Measures
            Congressional Regulation of Public Utilities
            Congressional Regulation of Railroads
            Taxation
            Retroactive Taxes
            Deprivation of Property: Retroactive Legislation
            Bankruptcy Legislation
            Right to Sue the Government
            Congressional Power to Abolish Common Law Judicial Actions
            Deprivation of Liberty: Economic Legislation
      National Eminent Domain Power
      Overview
            Public Use
            Just Compensation
                Interest
                Rights for Which Compensation Must Be Made
                Consequential Damages
                Enforcement of Right to Compensation
            When Property Is Taken
                Government Activity Not Directed at the Property
                Navigable Waters
                Regulatory Takings

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The history of the grand jury is rooted in the common and civil law, extending back to Athens, pre-Norman England, and the Assize of Clarendon promulgated by Henry II.\1\ The right seems to have been first mentioned in the colonies in the Charter of Liberties and Privileges of 1683, which was passed by the first assembly permitted to be elected in the colony of New York.\2\ Included from the first in Madison's introduced draft of the Bill of Rights, the provision elicited no recorded debate and no opposition. ``The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And in this country as in England of old the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.''\3\

NOTES:

\2\1 Bernard Schwartz, The Bill of Rights: A Documentary History 162, 166 (1971). The provision read: ``That in all Cases Capitall or Criminall there shall be a grand Inquest who shall first present the offence. . . .''

\3\Costello v. United States, 350 U.S. 359, 362 (1956). ``The grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty; notwithstanding periodic criticism, much of which is superficial, overlooking relevant history, the grand jury continues to function as a barrier to reckless or unfounded charges . . . . Its historic office has been to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance.'' United States v. Mandujano, 425 U.S. 564, 571 (1976) (plurality opinion). See id. at 589-91 (Justice Brennan concurring).

The prescribed constitutional function of grand juries in federal courts\4\ is to return criminal indictments, but the juries serve a considerably broader series of purposes as well. Principal among these is the investigative function, which is served through the fact that grand juries may summon witnesses by process and compel testimony and the production of evidence generally. Operating in secret, under the direction but not control of a prosecutor, not bound by many evidentiary and constitutional restrictions, such juries may examine witnesses in the absence of their counsel and without informing them of the object of the investigation or the place of the witnesses in it.\5\ The exclusionary rule is inapplicable in grand jury proceedings, with the result that a witness called before a grand jury may be questioned on the basis of knowledge obtained through the use of illegally-seized evidence.\6\ In thus allowing the use of evidence obtained in violation of the Fourth Amendment, the Court nonetheless restated the principle that, while free of many rules of evidence that bind trial courts, grand juries are not unrestrained by constitutional consideration.\7\ A witness called before a grand jury is not entitled to be informed that he may be indicted for the offense under inquiry\8\ and the commission of perjury by a witness before the grand jury is punishable, irrespective of the nature of the warning given him when he appears and regardless of the fact that he may already be a putative defendant when he is called.\9\

NOTES:

\5\Witnesses are not entitled to have counsel present in the room. Fed. R. Civ. P. 6(d). The validity of this restriction was asserted in dictum in In re Groban, 352 U.S. 330, 333 (1957), and inferentially accepted by the dissent in that case. Id. at 346-47 (Justice Black, distinguishing grand juries from the investigative entity before the Court). The decision in Coleman v. Alabama, 399 U.S. 1 (1970), deeming the preliminary hearing a ``critical stage of the prosecution'' at which counsel must be provided, called this rule in question, inasmuch as the preliminary hearing and the grand jury both determine whether there is probable cause with regard to a suspect. See id. at 25 (Chief Justice Burger dissenting). In United States v. Mandujano, 425 U.S. 564, 581 (1976) (plurality opinion), Chief Justice Burger wrote: ``Respondent was also informed that if he desired he could have the assistance of counsel, but that counsel could not be inside the grand jury room. That statement was plainly a correct recital of the law. No criminal proceedings had been instituted against respondent, hence the Sixth Amendment right to counsel had not come into play.'' By emphasizing the point of institution of criminal proceedings, relevant to the right of counsel at line-ups and the like, the Chief Justice not only reasserted the absence of a right to counsel in the room but also, despite his having referred to it, cast doubt upon the existence of any constitutional requirement that a grand jury witness be permitted to consult with counsel out of the room, and, further, raised the implication that a witness or putative defendant unable to afford counsel would have no right to appointed counsel. Concurring, Justice Brennan argued that it was essential and constitutionally required for the protection of one's constitutional rights that he have access to counsel, appointed if necessary, accepting the likelihood, without agreeing, that consultation outside the room would be adequate to preserve a witness' rights, Id. at 602-09 (with Justice Marshall). Justices Stewart and Blackmun reserved judgment. Id. at 609. The dispute appears ripe for revisiting.

\6\United States v. Calandra, 414 U.S. 338 (1974). The Court has interpreted a provision of federal wiretap law, 18 U.S.C. Sec. 2515, to prohibit utilization of unlawful wiretap information as a basis for questioning witnesses before grand juries. Gelbard v. United States, 408 U.S. 41 (1972).

\7\``Of course, the grand jury's subpoena is not unlimited. It may consider incompetent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law . . . . Although, for example, an indictment based on evidence obtained in violation of a defendant's Fifth Amendment privilege is nevertheless valid . . . , the grand jury may not force a witness to answer questions in violation of that constitutional guarantee. . . . Similarly, a grand jury may not compel a person to produce books and papers that would incriminate him. . . . The grand jury is also without power to invade a legitimate privacy interest protected by the Fourth Amendment. A grand jury's subpoena duces tecum will be disallowed if it is `far too sweeping in its terms to be regarded as reasonable under the Fourth Amendment.' Hale v. Henkel, 201 U.S. 43, 76 (1906). Judicial supervision is properly exercised in such cases to prevent the wrong before it occurs.'' United States v. Calandra, 414 U.S. 338, 346 (1974). See also United States v. Dionisio, 410 U.S. 1, 11-12 (1973). Grand juries must operate within the limits of the First Amendment and may not harass the exercise of speech and press rights. Branzburg v. Hayes, 408 U.S. 665, 707-08 (1972). Protection of Fourth Amendment interests is as extensive before the grand jury as before any investigative officers, Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) (now highly qualified as to its scope, supra, p. 1265); Hale v. Henkel, 201 U.S. 43, 76-77 (1920), but not more so either. United States v. Dionisio, 410 U.S. 1 (1973) (subpoena to give voice exemplars); United States v. Mara, 410 U.S. 19 (1973) (handwriting exemplars). The Fifth Amendment's self-incrimination clause must be respected. Blau v. United States, 340 U.S. 159 (1950); Hoffman v. United States, 341 U.S. 479 (1951). On common-law privileges, see Blau v. United States, 340 U.S. 332 (1951) (husband-wife privilege); Alexander v. United States, 138 U.S. 353 (1891) (attorney-client privilege). The traditional secrecy of grand jury proceedings has been relaxed a degree to permit a limited discovery of testimony. Compare Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959), with Dennis v. United States, 384 U.S. 855 (1966). See Fed. R. Crim. P. 6(e) (secrecy requirements and exceptions).

\8\United States v. Washington, 431 U.S. 181 (1977). Because defendant when he appeared before the grand jury was warned of his rights to decline to answer questions on the basis of self- incrimination, the decision was framed in terms of those warnings, but the Court twice noted that it had not decided, and was not deciding, ``whether any Fifth Amendment warnings whatever are constitutionally required for grand jury witnesses. . . .'' Id. at 186, 190.

\9\United States v. Mandujano, 425 U.S. 564 (1976); United States v. Wong, 431 U.S. 174 (1977). Mandujano had been told of his right to assert the privilege against self-incrimination, of the consequences of perjury, and of his right to counsel, but not to have counsel with him in the jury room. Chief Justice Burger and Justices White, Powell, and Rehnquist took the position that no Miranda warning was required because there was no police custodial interrogation and that in any event commission of perjury was not excusable on the basis of lack of any warning. Justices Brennan, Marshall, Stewart, and Blackmun agreed that whatever rights a grand jury witness had, perjury was punishable and not to be excused. Id. at 584, 609. Wong was assumed on appeal not to have understood the warnings given her and the opinion proceeds on the premise that absence of warnings altogether does not preclude a perjury prosecution.

Of greater significance were two cases in which the Court held the Fourth Amendment to be inapplicable to grand jury subpoenas requiring named parties to give voice exemplars and handwriting samples to the grand jury for identification purposes.\10\ According to the Court, the issue turned upon a two-tiered analysis--''whether either the initial compulsion of the person to appear before the grand jury, or the subsequent directive to make a voice recording is an unreasonable `seizure' within the meaning of the Fourth Amendment.''\11\ First, a subpoena to appear was held not to be a seizure, because it entailed significantly less social and personal affront than did an arrest or an investigative stop, and because every citizen has an obligation, which may be onerous at times, to appear and give whatever aid he may to a grand jury.\12\ Second, the directive to make a voice recording or to produce handwriting samples did not bring the Fourth Amendment into play because no one has any expectation of privacy in the characteristics of either his voice or his handwriting.\13\ Inasmuch as the Fourth Amendment was inapplicable, there was no necessity for the government to make a preliminary showing of the reasonableness of the grand jury requests.

NOTES:

\11\Id. at 9.

\12\Id. at 9-13.

\13\Id. at 13-15. The privacy rationale proceeds from Katz v. United States, 389 U.S. 347 (1967).

Besides indictments, grand juries may also issue reports which may indicate nonindictable misbehavior, mis- or malfeasance of public officers, or other objectionable conduct.\14\ Despite the vast power of grand juries, there is little in the way of judicial or legislative response designed to impose some supervisory restrictions on them.\15\

NOTES:

\15\Congress has required that in the selection of federal grand juries, as well as petit juries, random selection of a fair cross section of the community is to take place, and has provided a procedure for challenging discriminatory selection by moving to dismiss the indictment. 28 U.S.C. Sec. Sec. 1861-68. Racial discrimination in selection of juries is constitutionally proscribed in both state and federal courts. Infra, pp.1854-57.

Within the meaning of this article a crime is made ``infamous'' by the quality of the punishment which may be imposed.\16\ ``What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another.''\17\ Imprisonment in a state prison or penitentiary, with or without hard labor,\18\ or imprisonment at hard labor in the workhouse of the District of Columbia,\19\ falls within this category. The pivotal question is whether the offense is one for which the court is authorized to award such punishment; the sentence actually imposed is immaterial. When an accused is in danger of being subjected to an infamous punishment if convicted, he has the right to insist that he shall not be put upon his trial, except on the accusation of a grand jury.\20\ Thus, an act which authorized imprisonment at hard labor for one year, as well as deportation, of Chinese aliens found to be unlawfully within the United States, created an offense which could be tried only upon indictment.\21\ Counterfeiting,\22\ fraudulent alteration of poll books,\23\ fraudulent voting,\24\ and embezzlement,\25\ have been declared to be infamous crimes. It is immaterial how Congress has classified the offense.\26\ An act punishable by a fine of not more than $1,000 or imprisonment for not more than six months is a misdemeanor, which can be tried without indictment, even though the punishment exceeds that specified in the statutory definition of ``petty offenses.''\27\

NOTES:

\17\Id. at 427.

\18\Mackin v. United States, 117 U.S. 348, 352 (1886).

\19\United States v. Moreland, 258 U.S. 433 (1922).

\20\Ex parte Wilson, 114 U.S. 417, 426 (1885).

\21\Wong Wing v. United States, 163 U.S. 228, 237 (1896).

\22\Ex parte Wilson, 114 U.S. 417 (1885).

\23\Mackin v. United States, 117 U.S. 348 (1886).

\24\Parkinson v. United States, 121 U.S. 281 (1887).

\25\United States v. DeWalt, 128 U.S. 393 (1888).

\26\Ex parte Wilson, 114 U.S. 417, 426 (1885).

\27\Duke v. United States, 301 U.S. 492 (1937).

A person can be tried only upon the indictment as found by the grand jury, and especially upon its language found in the charging part of the instrument.\28\ A change in the indictment that does not narrow its scope deprives the court of the power to try the accused.\29\ While additions to offenses alleged in an indictment are prohibited, the Court has now ruled that it is permissible ``to drop from an indictment those allegations that are unnecessary to an offense that is clearly contained within it,'' as, e.g., a lesser included offense.\30\ There being no constitutional requirement that an indictment be presented by a grand jury in a body, an indictment delivered by the foreman in the absence of other grand jurors is valid.\31\ If valid on its face, an indictment returned by a legally constituted, non-biased grand jury satisfies the requirement of the Fifth Amendment and is enough to call for a trial on the merits; it is not open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury.\32\

NOTES:

\29\Ex parte Bain, 121 U.S. 1, 12 (1887). Ex parte Bain was overruled in United States v. Miller, 471 U.S. 130 (1985), to the extent that it held that a narrowing of an indictment is impermissible.

\30\United States v. Miller, 471 U.S. 130, 144 (1985).

\31\Breese v. United States, 226 U.S. 1 (1912).

\32\Costello v. United States, 350 U.S. 359 (1956); Lawn v. United States, 355 U.S. 339 (1958); United States v. Blue, 384 U.S. 251 (1966). Cf. Gelbard v. United States, 408 U.S. 41 (1972).

The protection of indictment by grand jury extends to all persons except those serving in the armed forces. All persons in the regular armed forces are subject to court martial rather than grand jury indictment or trial by jury.\33\ The exception's limiting words ``when in actual service in time of war or public danger'' apply only to members of the militia, not to members of the regular armed forces. In O'Callahan v. Parker, the Court in 1969 held that offenses that are not ``service connected'' may not be punished under military law, but instead must be tried in the civil courts in the jurisdiction where the acts took place.\34\ This decision was overruled, however, in 1987, the Court emphasizing the ``plain language'' of Art. I, Sec. 8, cl. 14,\35\ and not directly addressing any possible limitation stemming from the language of the Fifth Amendment.\36\ ``The requirements of the Constitution are not violated where . . . a court-martial is convened to try a serviceman who was a member of the armed services at the time of the offense charged.''\37\ Even under the service connection rule, it was held that offenses against the laws of war, whether committed by citizens or by alien enemy belligerents, could be tried by a military commission.\38\

NOTES:

\34\395 U.S. 258 (1969); see also Relford v. Commandant, 401 U.S. 355 (1971) (offense committed on military base against persons lawfully on base was service connected). But courts-martial of civilian dependents and discharged servicemen have been barred. Id. See supra, pp.316-19.

\35\This clause confers power on Congress to ``make rules for the government and regulation of the land and naval forces.''

\36\Solorio v. United States, 483 U.S. 435 (1987). A 5-4 majority favored overruling O'Callahan: Chief Justice Rehnquist's opinion for the Court was joined by Justices White, Powell, O'Connor, and Scalia. Justice Stevens concurred in the judgment but thought it unnecessary to reexamine O'Callahan. Dissenting Justice Marshall, joined by Justices Brennan and Blackmun, thought the service connection rule justified by the language of the Fifth Amendment's exception, based on the nature of cases (those ``arising in the land or naval forces'') rather than the status of defendants.

\37\Id. at 450-51.

\38\Ex parte Quirin, 317 U.S. 1, 43, 44 (1942).

``The constitutional prohibition against `double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.''\39\ The concept of double jeopardy goes far back in history, but its development was uneven and its meaning has varied. The English development, under the influence of Coke and Blackstone, came gradually to mean that a defendant at trial could plead former conviction or former acquittal as a special plea in bar to defeat the prosecution.\40\ In this country, the common-law rule was in some cases limited to this rule and in other cases extended to bar a new trial even though the former trial had not concluded in either an acquittal or a conviction. The rule's elevation to fundamental status by its inclusion in several state bills of rights following the Revolution continued the differing approaches.\41\ Madison's version of the guarantee as introduced in the House of Representatives read: ``No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense.''\42\ Opposition in the House proceeded on the proposition that the language could be construed to prohibit a second trial after a successful appeal by a defendant and would therefore either constitute a hazard to the public by freeing the guilty or, more likely, result in a detriment to defendants because appellate courts would be loath to reverse convictions if no new trial could follow, but a motion to strike ``or trial'' from the clause failed.\43\ As approved by the Senate, however, and accepted by the House for referral to the States, the present language of the clause was inserted.\44\

NOTES:

\40\M. Friedland, Double Jeopardy (1969), part 1; Crist v. Bretz, 437 U.S. 28, 32-36 (1978), and id. at 40 (Justice Powell dissenting); United States v. Wilson, 420 U.S. 332, 340 (1975).

\41\J. Sigler, Double Jeopardy--The Development of a Legal and Social Policy 21-27 (1969). The first bill of rights which expressly adopted a double jeopardy clause was the New Hampshire Constitution of 1784. ``No subject shall be liable to be tried, after an acquittal, for the same crime or offence.'' Art. I, Sec. XCI, 4 F. Thorpe, The Federal and State Constitution, reprinted in H.R. Doc. No. 357, 59th Congress, 2d Sess. 2455 (1909). A more comprehensive protection was included in the Pennsylvania Declaration of Rights of 1790, which had language almost identical to the present Fifth Amendment provision. Id. at 3100.

\42\1 Annals of Congress 434 (June 8, 1789).

\43\Id. at 753.

\44\2 Bernard Schwartz, The Bill of Rights: A Documentary History 1149, 1165 (1971). In Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting), Justice Powell attributed to inadvertence the broadening of the ``rubric'' of double jeopardy to incorporate the common law rule against dismissal of the jury prior to verdict, a question the majority passed over as being ``of academic interest only.'' Id. at 34 n.10.

Throughout most of its history, this clause was binding only against the Federal Government. In Palko v. Connecticut,\45\ the Court rejected an argument that the Fourteenth Amendment incorporated all the provisions of the first eight Amendments as limitations on the States and enunciated the due process theory under which most of those Amendments do now apply to the States. Some guarantees in the Bill of Rights, Justice Cardozo wrote, were so fundamental that they are ``of the very essence of the scheme of ordered liberty'' and ``neither liberty nor justice would exist if they were sacrificed.''\46\ But the double jeopardy clause, like many other procedural rights of defendants, was not so fundamental; it could be absent and fair trials could still be had. Of course, a defendant's due process rights, absent double jeopardy consideration per se, might be violated if the State ``creat[ed] a hardship so acute and shocking as to be unendurable,'' but that was not the case in Palko.\47\ In Benton v. Maryland,\48\ however, the Court concluded ``that the double jeopardy prohibition . . . represents a fundamental ideal in our constitutional heritage. . . . Once it is decided that a particular Bill of Rights guarantee is `fundamental to the American scheme of justice,' . . . the same constitutional standards apply against both the State and Federal Governments.'' Therefore, the double jeopardy limitation now applies to both federal and state governments and state rules on double jeopardy, with regard to such matters as when jeopardy attaches, must be considered in the light of federal standards.\49\

NOTES:

\46\Id. at 325, 326.

\47\Id. at 328.

\48\395 U.S. 784, 794-95 (1969).

\49\Crist v. Bretz, 437 U.S. 28, 37-38 (1978). But see id. at 40 (Justices Powell and Rehnquist and Chief Justice Burger dissenting) (standard governing States should be more relaxed).

In a federal system, different units of government may have different interests to serve in the definition of crimes and the enforcement of their laws, and where the different units have overlapping jurisdictions a person may engage in conduct that will violate the laws of more than one unit.\50\ Although the Court had long accepted in dictum the principle that prosecution by two governments of the same defendant for the same conduct would not constitute double jeopardy,\51\ it was not until United States v. Lanza\52\ that the conviction in federal court of a person previously convicted in a state court for performing the same acts was sustained. ``We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.''\53\ The ``dual sovereignty'' doctrine is not only tied into the existence of two sets of laws often serving different federal-state purposes and the now overruled principle that the double jeopardy clause restricts only the national government and not the States,\54\ but it also reflects practical considerations that undesirable consequences could follow an overruling of the doctrine. Thus, a State might preempt federal authority by first prosecuting and providing for a lenient sentence (as compared to the possible federal sentence) or acquitting defendants who had the sympathy of state authorities as against federal law enforcement.\55\ The application of the clause to the States has therefore worked no change in the ``dual sovereign'' doctrine.\56\ Of course, when in fact two different units of the government are subject to the same sovereign, the double jeopardy clause does bar separate prosecutions by them for the same offense.\57\ The dual sovereignty doctrine has also been applied to permit successive prosecutions by two states for the same conduct.\58\

NOTES:

\51\Id. And see cases cited in Bartkus v. Illinois, 359 U.S. 121, 132 n.19 (1959), and Abbate v. United States, 359 U.S. 187, 192-93 (1959).

\52\260 U.S. 377 (1922).

\53\Id. at 382. See also Hebert v. Louisiana, 272 U.S. 312 (1924); Screws v. United States, 325 U.S. 91, 108 (1945); Jerome v. United States, 318 U.S. 101 (1943).

\54\Benton v. Maryland, 395 U.S. 784 (1969), extended the clause to the States.

\55\Reaffirmation of the doctrine against double jeopardy claims as to the Federal Government and against due process claims as to the States occurred in Abbate v. United States, 359 U.S. 187 (1959), and Bartkus v. Illinois, 359 U.S. 121 (1959), both cases containing extensive discussion and policy analyses. The Justice Department follows a policy of generally not duplicating a state prosecution brought and carried out in good faith, see Petite v. United States, 361 U.S. 529, 531 (1960); Rinaldi v. United States, 434 U.S. 22 (1977), and several provisions of federal law forbid a federal prosecution following a state prosecution. E.g., 18 U.S.C. Sec. Sec. 659, 660, 1992, 2117. The Brown Commission recommended a general statute to this effect, preserving discretion in federal authorities to proceed upon certification by the Attorney General that a United States interest would be unduly harmed if there were no federal prosecution. National Commission on Reform of Federal Criminal Laws, Final Report 707 (1971).

\56\United States v. Wheeler, 435 U.S. 313 (1978) (dual sovereignty doctrine permits federal prosecution of an Indian for statutory rape following his plea of guilty in a tribal court to contributing to the delinquency of a minor, both charges involving the same conduct; tribal law stemmed from the retained sovereignty of the tribe and did not flow from the Federal Government).

\57\Grafton v. United States, 206 U.S. 333 (1907) (trial by military court-martial precluded subsequent trial in territorial court); Waller v. Florida, 397 U.S. 387 (1970) (trial by municipal court precluded trial for same offense by state court). It was assumed in an early case that refusal to answer questions before one House of Congress could be punished as a contempt by that body and by prosecution by the United States under a misdemeanor statute, In re Chapman, 166 U.S. 661, 672 (1897), but there had been no dual proceedings in that case and it seems highly unlikely that the case would now be followed. Cf. Colombo v. New York, 405 U.S. 9 (1972).

\58\Heath v. Alabama, 474 U.S. 82 (1985) (defendant crossed state line in course of kidnap murder, was prosecuted for murder in both states).

The clause speaks of being put in ``jeopardy of life or limb,'' which as derived from the common law, generally referred to the possibility of capital punishment upon conviction, but it is now settled that the clause protects with regard ``to every indictment or information charging a party with a known and defined crime or misdemeanor, whether at the common law or by statute.''\59\ Despite the Clause's literal language, it can apply as well to sanctions that are civil in form if they clearly are applied in a manner that constitutes ``punishment.''\60\

NOTES:

\60\The clause applies in juvenile court proceedings which are formally civil. Breed v. Jones, 421 U.S. 519 (1975). See also United States v. Halper, 490 U.S. 435 (1989) (civil penalty under the False Claims Act constitutes punishment if it is overwhelmingly disproportionate to compensating the government for its loss, and if it can be explained only as serving retributive or deterrent purposes); United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) (in determining whether a forfeiture proceeding is remedial or punitive, congressional preference for a civil sanction will be overridden only by ``the clearest proof'' to the contrary).

Because one prime purpose of the clause is the protection against the burden of multiple trials, a defendant who raises and loses a double jeopardy claim during pretrial or trial may immediately appeal the ruling, a rare exception to the general rule prohibiting appeals from nonfinal orders.\61\

NOTE:

During the 1970s especially, the Court decided an uncommonly large number of cases raising double jeopardy claims.\62\ Instead of the clarity that often emerges from intense consideration of a particular issue, however, double jeopardy doctrine has descended into a state of ``confusion,'' with the Court acknowledging that its decisions ``can hardly be characterized as models of consistency and clarity.''\63\ In large part, the re-evaluation of doctrine and principle has not resulted in the development of clear and consistent guidelines because of the differing emphases of the Justices upon the purposes of the clause and the consequent shifting coalition of majorities based on highly technical distinctions and individualistic fact patterns. Thus, some Justices have expressed the belief that the purpose of the clause is only to protect final judgments relating to culpability, either of acquittal or conviction, and that English common law rules designed to protect the defendant's right to go to the first jury picked had early in our jurisprudence become confused with the double jeopardy clause. While they accept the present understanding, they do so as part of the Court's superintending of the federal courts and not because the understanding is part and parcel of the clause; in so doing, of course, they are likely to find more prosecutorial discretion in the trial process.\64\ Others have expressed the view that the clause not only protects the integrity of final judgments but, more important, that it protects the accused against the strain and burden of multiple trials, which would also enhance the ability of government to convict.\65\ Still other Justices have engaged in a form of balancing of defendants' rights with society's rights to determine when reprosecution should be permitted when a trial ends prior to a final judgment not hinged on the defendant's culpability.\66\ Thus, the basic area of disagreement, though far from the only one, centers on the trial from the attachment of jeopardy to the final judgment.

NOTES:

\63\Burks v. United States, 437 U.S. 1, 9, 15 (1978). One result is instability in the law. Thus, Burks overruled, to the extent inconsistent, four cases decided between 1950 and 1960, and United States v. Scott, 437 U.S. 82 (1978), overruled a case decided just three years earlier, United States v. Jenkins, 420 U.S. 358 (1975).

\64\See Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting opinion). Justice Powell, joined by Chief Justice Burger and Justice Rehnquist, argued that with the double jeopardy clause so interpreted the due process clause could be relied on to prevent prosecutorial abuse during the trial designed to abort the trial and obtain a second one. Id. at 50. All three have joined, indeed, in some instances, have authored, opinions adverting to the role of the double jeopardy clause in protecting against such prosecutorial abuse. E.g., United States v. Scott, 437 U.S 82, 92-94 (1978); Oregon v. Kennedy, 456 U.S. 667 (1982) (but narrowing scope of concept).

\65\United States v. Scott, 437 U.S. 82, 101 (1978) (dissenting opinion) (Justices Brennan, White, Marshall, and Stevens).

\66\Thus, Justice Blackmun has enunciated positions recognizing a broad right of defendants much like the position of the latter three Justices, Crist v. Bretz, 437 U.S. 28, 38 (1978) (concurring), and he joined Justice Stevens' concurrence in Oregon v. Kennedy, 456 U.S. 667, 681 (1982), but he also joined the opinions in United States v. Scott, 437 U.S. 82 (1978), and Arizona v. Washington, 434 U.S. 497 (1978) (Justice Blackmun concurring only in the result).

The common law generally required that the previous trial must have ended in a judgment, of conviction or acquittal, but the constitutional rule is that jeopardy attaches much earlier, in jury trials when the jury is sworn, and in trials before a judge without a jury, when the first evidence is presented.\67\ Therefore, if after jeopardy attaches the trial is terminated for some reason, it may be that a second trial, even if the termination was erroneous, is barred.\68\ The reasons the Court has given for fixing the attachment of jeopardy at a point prior to judgment and thus making some terminations of trials before judgment final insofar as the defendant is concerned is that a defendant has a ``valued right to have his trial completed by a particular tribunal.''\69\ The reason the defendant's right is so ``valued'' is that he has a legitimate interest in completing the trial ``once and for all'' and ``conclud[ing] his confrontation with society,''\70\ so as to be spared the expense and ordeal of repeated trials, the anxiety and insecurity of having to live with the possibility of conviction, and the possibility that the prosecution may strengthen its case with each try as it learns more of the evidence and of the nature of the defense.\71\ These reasons both inform the determination when jeopardy attaches and the evaluation of the permissibility of retrial depending upon the reason for a trial's premature termination.

NOTES:

\68\Cf. United States v. Jorn, 400 U.S. 470 (1971); Downum v. United States, 372 U.S. 734 (1963). ``Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.'' Arizona v. Washington, 434 U.S. 497, 503-05 (1978).

\69\Wade v. Hunter, 336 U.S. 684, 689 (1949).

\70\United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality opinion).

\71\Arizona v. Washington, 434 U.S. 497, 503-05 (1978); Crist v. Bretz, 437 U.S. 28, 35-36 (1978). See Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 86-97.

A mistrial may be the result of ``manifest necessity,''\72\ such as where, for example, the jury cannot reach a verdict\73\ or circumstances plainly prevent the continuation of the trial.\74\ Difficult has been the answer, however, when the doctrine of ``manifest necessity'' has been called upon to justify a second trial following a mistrial granted by the trial judge because of some event within the prosecutor's control or because of prosecutorial misconduct or because of error or abuse of discretion by the judge himself. There must ordinarily be a balancing of the defendant's right in having the trial completed against the public interest in fair trials designed to end in just judgments.\75\ Thus, when, after jeopardy attached, a mistrial was granted because of a defective indictment, the Court held that retrial was not barred; a trial judge ``properly exercises his discretion'' in cases in which an impartial verdict cannot be reached or in which a verdict on conviction would have to be reversed on appeal because of an obvious error. ``If an error could make reversal on appeal a certainty, it would not serve `the ends of public justice' to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court.''\76\ On the other hand, when, after jeopardy attached, a prosecutor successfully moved for a mistrial because a key witness had inadvertently not been served and could not be found, the Court held a retrial barred, because the prosecutor knew prior to the selection and swearing of the jury that the witness was unavailable.\77\ Although this case appeared to establish the principle that an error of the prosecutor or of the judge leading to a mistrial could not constitute a ``manifest necessity'' for terminating the trial, Somerville distinguished and limited Downum to situations in which the error lends itself to prosecutorial manipulation, in being the sort of instance which the prosecutor could use to abort a trial that was not proceeding successfully and to obtain a new trial in which his advantage would be increased.\78\

NOTES:

\73\Id.; Logan v. United States, 144 U.S. 263 (1892).

\74\Simmons v. United States, 142 U.S. 148 (1891) (juror's impartiality became questionable during trial); Thompson v. United States, 155 U.S. 271 (1884) (discovery during trial that one of the jurors had served on the grand jury which indicted defendant and was therefore disqualified); Wade v. Hunter, 336 U.S. 684 (1949) (court- martial discharged because enemy advancing on site).

\75\Illinois v. Somerville, 410 U.S. 458, 463 (1973).

\76\Id. at 464.

\77\Downum v. United States, 372 U.S. 734 (1963).

\78\Illinois v. Somerville, 410 U.S. 458, 464-65, 468-69 (1973).

Another kind of case arises when the prosecutor moves for mistrial because of prejudicial misconduct by the defense. In Arizona v. Washington,\79\ defense counsel in his opening statement made prejudicial comments about the prosecutor's past conduct, and the prosecutor's motion for a mistrial was granted over defendant's objections. The Court ruled that retrial was not barred by double jeopardy. Granting that in a strict, literal sense, mistrial was not ``necessary'' because the trial judge could have given limiting instructions to the jury, the Court held that the highest degree of respect should be given to the trial judge's evaluation of the likelihood of the impairment of the impartiality of one or more jurors. As long as support for a mistrial order can be found in the trial record, no specific statement of ``manifest necessity'' need be made by the trial judge.\80\

NOTES:

\80\``Manifest necessity'' characterizes the burden the prosecutor must shoulder in justifying retrial. Id. at 505-06. But ``necessity'' cannot be interpreted literally; it means rather a ``high degree'' of necessity, and some instances, such as hung juries, easily meet that standard. Id. at 506-07. In a situation like that presented in this case, great deference must be paid to the trial judge's decision because he was in the best position to determine the extent of the possible bias, having observed the jury's response, and to respond by the course he deems best suited to deal with it. Id. at 510-14. Here, ``the trial judge acted responsibly and deliberately, and accorded careful consideration to respondent's interest in having the trial concluded in a single proceeding. [H]e exercised `sound discretion'. . . .'' Id. at 516.

Emphasis upon the trial judge's discretion has an impact upon the cases in which it is the judge's error, in granting sua sponte a mistrial or granting the prosecutor's motion. The cases are in doctrinal disarray. Thus, in Gori v. United States,\81\ the Court permitted retrial of the defendant when the trial judge had, on his own motion and with no indication of the wishes of defense counsel, declared a mistrial because he thought the prosecutor's line of questioning was intended to expose the defendant's criminal record, which would have constituted prejudicial error. Although the Court thought the judge's action was an abuse of discretion, it approved retrial on the conclusion that the judge's decision had been taken for defendant's benefit. This rationale was disapproved in the next case, in which the trial judge discharged the jury erroneously and in abuse of his discretion, because he disbelieved the prosecutor's assurance that certain witnesses had been properly apprised of their constitutional rights.\82\ Refusing to permit retrial, the Court observed that the ``doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option [to go to the first jury and perhaps obtain an acquittal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.''\83\ The later cases appear to accept Jorn as an example of a case where the trial judge ``acts irrationally or irresponsibly.'' But if the trial judge acts deliberately, giving prosecution and defense the opportunity to explain their positions, and according respect to defendant's interest in concluding the matter before the one jury, then he is entitled to deference. This approach perhaps rehabilitates the result if not the reasoning in Gori and maintains the result and much of the reasoning of Jorn.\84\

NOTES:

\82\United States v. Jorn, 400 U.S. 470, 483 (1971).

\83\Id. at 485. The opinion of the Court was by a plurality of four, but two other Justices joined it after first arguing that jurisdiction was lacking to hear the Government's appeal.

\84\Arizona v. Washington, 434 U.S. 497, 514, 515-16 (1978). See also Illinois v. Somerville, 410 U.S. 458, 462, 465-66, 469-71 (1973) (discussing Gori and Jorn.)

Of course, ``a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by a prosecutorial or judicial error.''\85\ ``Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.''\86\ In United States v. Dinitz,\87\ the trial judge had excluded defendant's principal attorney for misbehavior and had then given defendant the option of recess while he appealed the exclusion, a mistrial, or continuation with an assistant defense counsel. Holding that the defendant could be retried after he chose a mistrial, the Court reasoned that, while the exclusion might have been in error, it was not done in bad faith to goad the defendant into requesting a mistrial or to prejudice his prospects for acquittal. The defendant's choice, even though difficult, to terminate the trial and go on to a new trial should be respected and a new trial not barred. To hold otherwise would necessitate requiring the defendant to shoulder the burden and anxiety of proceeding to a probable conviction followed by an appeal, which if successful would lead to a new trial, and neither the public interest nor defendant's interests would thereby be served.

NOTES:

\86\United States v. Scott, 437 U.S. 82, 93 (1978).

\87\424 U.S. 600 (1976). See also Lee v. United States, 432 U.S. 23 (1977) (defendant's motion to dismiss because the information was improperly drawn made after opening statement and renewed at close of evidence was functional equivalent of mistrial and when granted did not bar retrial, Court emphasizing that defendant by his timing brought about foreclosure of opportunity to stay before the same trial).

But the Court has also reserved the possibility that the defendant's motion might be necessitated by prosecutorial or judicial overreaching motivated by bad faith or undertaken to harass or prejudice, and in those cases retrial would be barred. It was unclear what prosecutorial or judicial misconduct would constitute such overreaching,\88\ but in Oregon v. Kennedy,\89\ the Court adopted a narrow ``intent'' test, so that ``[o]nly 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.'' Therefore, ordinarily, a defendant who moves for or acquiesces in a mistrial is bound by his decision and may be required to stand for retrial.

NOTES:

\89\456 U.S. 667, 676 (1982). The Court thought a broader standard requiring an evaluation of whether acts of the prosecutor or the judge prejudiced the defendant would be unmanageable and would be counterproductive because courts would be loath to grant motions for mistrials knowing that reprosecution would be barred. Id. at 676-77. The defendant had moved for mistrial after the prosecutor had asked a key witness a prejudicial question. Four Justices concurred, noting that the question did not constitute overreaching or harassment and objecting both to the Court's reaching the broader issue and to its narrowing the exception. Id. at 681.

Reprosecution Following Acquittal. -- That a defendant may not be retried following an acquittal is ``the most fundamental rule in the history of double jeopardy jurisprudence.''\90\ ``[T]he law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that `even though innocent he may be found guilty.'''\91\ While in other areas of double jeopardy doctrine consideration is given to the public-safety interest in having a criminal trial proceed to an error- free conclusion, no such balancing of interests is permitted with respect to acquittals, ``no matter how erroneous,'' no matter even if they were ``egregiously erroneous.''\92\

NOTES:

\91\United States v. Scott, 437 U.S. 82, 91 (1978) (quoting Green v. United States, 355U.S. 184, 188 (1957)). For the conceptually related problem of trial for a ``separate'' offense arising out of the same ``transaction,'' see infra, pp.1299-1302.

\92\Burks v. United States, 437 U.S. 1, 16 (1978); Fong Foo v. United States, 369 U.S. 141, 143 (1962). For evaluation of those interests of the defendant that might support the absolute rule of finality, and rejection of all such interests save the right of the jury to acquit against the evidence and the trial judge's ability to temper legislative rules with leniency, see Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 122-37.

The acquittal being final, there is no governmental appeal constitutionally possible from such a judgment. This was firmly established in Kepner v. United States,\93\ which arose under a Philippines appeals system in which the appellate court could make an independent review of the record, set aside the trial judge's decision, and enter a judgment of conviction.\94\ Previously, under the due process clause, there was no barrier to state provision for prosecutorial appeals from acquittals.\95\ But there are instances in which the trial judge will dismiss the indictment or information without intending to acquit or in circumstances in which retrial would not be barred, and the prosecution, of course, has an interest in seeking on appeal to have errors corrected. Until 1971, however, the law providing for federal appeals was extremely difficult to apply and insulated from review many purportedly erroneous legal rulings,\96\ but in that year Congress enacted a new statute permitting appeals in all criminal cases in which indictments are dismissed, except in those cases in which the double jeopardy clause prohibits further prosecution.\97\ In part because of the new law, the Court has dealt in recent years with a large number of problems in this area.

NOTES:

\94\In dissent, Justice Holmes, joined by three other Justices, propounded a theory of ``continuing jeopardy,'' so that until the case was finally concluded one way or another, through judgment of conviction or acquittal, and final appeal, there was no second jeopardy no matter how many times a defendant was tried. Id. at 134. The Court has numerous times rejected any concept of ``continuing jeopardy.'' E.g., Green v. United States, 355 U.S. 184, 192 (1957); United States v. Wilson, 420 U.S. 332, 351-53 (1975); Breed v. Jones, 421 U.S. 519, 533-35 (1975).

\95\Palko v. Connecticut, 302 U.S. 319 (1937). Palko is no longer viable. Cf. Greene v. Massey, 437 U.S. 19 (1978).

\96\The Criminal Appeals Act of 1907, 34 Stat. 1246, was ``a failure . . . , a most unruly child that has not improved with age.'' United States v. Sisson, 399 U.S. 267, 307 (1970). See also United States v. Oppenheimer, 242 U.S. 85 (1916); Fong Foo v. United States, 369 U.S. 141 (1962).

\97\Title III of the Omnibus Crime Control Act, Pub. L. No. 91- 644, 84 Stat. 1890, 18 U.S.C. Sec. 3731. Congress intended to remove all statutory barriers to governmental appeal and to allow appeals whenever the Constitution would permit, so that interpretation of the statute requires constitutional interpretation as well. United States v. Wilson, 420 U.S. 332, 337 (1974). See Sanabria v. United States, 437 U.S. 54, 69 n.23 (1978), and id. at 78 (Justice Stevens concurring).

Acquittal by Jury. -- Little or no controversy accompanies the rule that once a jury has acquitted a defendant, government may not, through appeal of the verdict or institution of a new prosecution, place the defendant on trial again. Thus, the Court early held that, when the results of a trial are set aside because the first indictment was invalid or for some reason the trial's results were voidable, a judgment of acquittal must nevertheless remain undisturbed.\98\

NOTE:

Acquittal by the Trial Judge. -- Similarly, when a trial judge acquits a defendant, that action concludes the matter.\99\ There is no possibility of retrial for the same offense.\100\ But it may be difficult at times to determine whether the trial judge's action was in fact an acquittal or was a dismissal or some other action which the prosecution may be able to appeal. The question is ``whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.''\101\ Thus, an appeal by the Government was held barred in a case in which the deadlocked jury had been discharged, and the trial judge had granted the defendant's motion for a judgment of acquittal under the appropriate federal rule, explicitly based on the judgment that the Government had not proved facts constituting the offense.\102\ Even if, as happened in Sanabria v. United States,\103\ the trial judge erroneously excludes evidence and then acquits on the basis that the remaining evidence is insufficient to convict, the judgment of acquittal produced thereby is final and unreviewable.

NOTES:

\100\In Fong Foo v. United States, 369 U.S. 141 (1962), the Court acknowledged that the trial judge's action in acquitting was ``based upon an egregiously erroneous foundation,'' but it was nonetheless final and could not be reviewed. Id. at 143.

\101\United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977).

\102\Id. at 570-76. See also United States v. Scott, 437 U.S. 82, 87-92 (1978); Smalis v. Pennsylvania, 476 U.S. 140 (1986) (demurrer sustained on basis of insufficiency of evidence is acquittal).

\103\437 U.S. 54 (1978). The double jeopardy applications of an appellate court's reversal for insufficient evidence are discussed infra, pp.1294-95.

Some limited exceptions do exist with respect to the finality of trial judge acquittal. First, because a primary purpose of the due process clause is the prevention of successive trials and not of prosecution appeals per se, it is apparently the case that if the trial judge permits the case to go to the jury, which convicts, and the judge thereafter enters a judgment of acquittal, even one founded upon his belief that the evidence does not establish guilt, the prosecution may appeal, because the effect of a reversal would be not a new trial but reinstatement of the jury's verdict and judgment thereon.\104\ Second, if the trial judge enters or grants a motion of acquittal, even one based on the conclusion that the evidence is insufficient to convict, the prosecution may appeal if jeopardy had not yet attached in accordance with the federal standard.\105\

NOTES:

\105\Serfass v. United States, 420 U.S. 377 (1975) (after request for jury trial but before attachment of jeopardy judge dismissed indictment because of evidentiary insufficiency; appeal allowed); United States v. Sanford, 429 U.S. 14 (1976) (judge granted mistrial after jury deadlock, then four months later dismissed indictment for insufficient evidence; appeal allowed, because granting mistrial had returned case to pretrial status).

Trial Court Rulings Terminating Trial Before Verdict. -- If, after jeopardy attaches, a trial judge grants a motion for mistrial, ordinarily the defendant is subject to retrial;\106\ if, after jeopardy attaches, but before a jury conviction occurs, the trial judge acquits, perhaps on the basis that the prosecution has presented insufficient evidence or that the defendant has proved a requisite defense such as insanity or entrapment, the defendant is not subject to retrial.\107\ However, it may be that the trial judge will grant a motion to dismiss that is neither a mistrial nor an acquittal, but is instead a termination of the trial in defendant's favor based on some decision not relating to his factual guilt or innocence, such as prejudicial preindictment delay.\108\ The prosecution may not simply begin a new trial but must seek first to appeal and overturn the dismissal, a course that was not open to federal prosecutors until enactment of the 1971 law.\109\ That law has resulted in tentative and uncertain rulings with respect to when such dismissals may be appealed and further proceedings directed. In the first place, it is unclear in many instances whether a judge's ruling is a mistrial, a dismissal, or an acquittal.\110\ In the second place, because the Justices have such differing views about the policies underlying the double jeopardy clause, determinations of which dismissals preclude appeals and further proceedings may result from shifting coalitions and from revised perspectives. Thus, the Court first fixed the line between permissible and impermissible appeals at the point at which further proceedings would have had to take place in the trial court if the dismissal were reversed. If the only thing that had to be done was to enter a judgment on a guilty verdict after reversal, appeal was constitutional and permitted under the statute;\111\ if further proceedings, such as continuation of the trial or some further factfinding, was necessary, appeal was not permitted.\112\ Now, but by a close division of the Court, the determining factor is not whether further proceedings must be had but whether the action of the trial judge, whatever its label, correct or not, resolved some or all of the factual elements of the offense charged in defendant's favor, whether, that is, the court made some determination related to the defendant's factual guilt or innocence.\113\ Such dismissals relating to guilt or innocence are functional equivalents of acquittals, whereas all other dismissals are functional equivalents of mistrials.

NOTES:

\107\Supra, p.1290.

\108\United States v. Wilson, 420 U.S. 332 (1975) (preindictment delay); United States v. Jenkins, 420 U.S. 358 (1975) (determination of law based on facts adduced at trial; ambiguous whether judge's action was acquittal or dismissal); United States v. Scott, 437 U.S. 82 (1978) (preindictment delay).

\109\Supra, pp.1289-90. See United States v. Scott, 437 U.S. 82, 84-86 (1978); United States v. Sisson, 399 U.S. 267, 291-96 (1970).

\110\Cf. Lee v. United States, 432 U.S. 23 (1977).

\111\United States v. Wilson, 420 U.S. 332 (1975) (after jury guilty verdict, trial judge dismissed indictment on grounds of preindictment delay; appeal permissible because upon reversal all trial judge had to do was enter judgment on the jury's verdict).

\112\United States v. Jenkins, 420 U.S. 358 (1975) (after presentation of evidence in bench trial, judge dismissed indictment; appeal impermissible because if dismissal was reversed there would have to be further proceedings in the trial court devoted to resolving factual issues going to elements of offense charged and resulting in supplemental findings).

\113\United States v. Scott, 437 U.S. 82 (1978) (at close of evidence, court dismissed indictment for preindictment delay; ruling did not go to determination of guilt or innocence, but, like a mistrial, permitted further proceedings that would go to factual resolution of guilt or innocence). The Court thought that double jeopardy policies were resolvable by balancing the defendant's interest in having the trial concluded in one proceeding against the government's right to one complete opportunity to convict those who have violated the law. The defendant chose to move to terminate the proceedings and, having made a voluntary choice, is bound to the consequences, including the obligation to continue in further proceedings. Id. at 95-101. The four dissenters would have followed Jenkins, and accused the Court of having adopted too restrictive a definition of acquittal. Their view is that the rule against retrials after acquittal does not, as the Court believed, ``safeguard determination of innocence; rather, it is that a retrial following a final judgment for the accused necessarily threatens intolerable interference with the constitutional policy against multiple trials.'' Id. at 101, 104 (Justices Brennan, White, Marshall, and Stevens). They would, therefore, treat dismissals as functional equivalents of acquittals, whenever further proceedings would be required after reversals.

A basic purpose of the double jeopardy clause is to protect a defendant ``against a second prosecution for the same offense after conviction.''\114\ It is ``settled'' that ``no man can be twice lawfully punished for the same offense.''\115\ Of course, the defendant's interest in finality, which informs much of double jeopardy jurisprudence, is quite attenuated following conviction, and he will most likely appeal, whereas the prosecution will ordinarily be content with its judgment.\116\ The situation involving reprosecution ordinarily arises, therefore, only in the context of successful defense appeals and controversies over punishment.

NOTES:

\115\Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873). For the conceptually-related problem of trial for a ``separate'' offense arising out of the same transaction, see infra, pp.1299-1301.

\116\A prosecutor dissatisfied with the punishment imposed upon the first conviction might seek another trial in order to obtain a greater sentence. Cf. Ciucci v. Illinois, 356 U.S. 571 (1958) (under due process clause, double jeopardy clause not then applying to States).

Reprosecution After Reversal on Defendant's Appeal. -- Generally, a defendant who is successful in having his conviction set aside on appeal may be tried again for the same offense, the assumption being made in the first case on the subject that, by appealing, a defendant has ``waived'' his objection to further prosecution by challenging the original conviction.\117\ Although it has characterized the ``waiver'' theory as ``totally unsound and indefensible,''\118\ the Court has been hesitant in formulating a new theory in maintaining the practice.\119\

NOTES:

\118\Green v. United States, 355 U.S. 184, 197 (1957). The more recent cases continue to reject a ``waiver'' theory. E.g., United States v. Dinitz, 424 U.S. 600, 609 n.11 (1976); United States v. Scott, 437 U.S. 82, 99 (1978).

\119\Justice Holmes in dissent in Kepner v. United States, 195 U.S. 100, 134 (1904), rejected the ``waiver'' theory and propounded a theory of ``continuing jeopardy,'' which also continues to be rejected. See supra, p.1289 n.94. In some cases, a concept of ``election'' by the defendant has been suggested, United States v. Scott, 437 U.S. 82, 93 (1978); Jeffers v. United States, 432 U.S. 137, 152-54 (1977), but it is not clear how this formulation might differentiate itself from ``waiver.'' Chief Justice Burger has suggested that ``probably a more satisfactory explanation'' for permissibility of retrial in this situation ``lies in analysis of the respective interests involved,'' Breed v. Jones, 421 U.S. 519, 533-35 (1975), and a determination that on balance the interests of both prosecution and defense are well served by the rule. See United States v. Tateo, 377 U.S. 463, 466 (1964); Tibbs v. Florida, 457 U.S. 31, 39-40 (1982).

An exception to full application of the retrial rule exists, however, when defendant on trial for an offense is convicted of a lesser offense and succeeds in having that conviction set aside. Thus, in Green v. United States,\120\ defendant had been placed on trial for first degree murder but convicted of second degree murder; the Court held that, following reversal of that conviction, he could not be tried again for first degree murder, although he certainly could be for second degree murder, on the theory that the first verdict was an implicit acquittal of the first degree murder charge.\121\ Even though the Court thought the jury's action in the first trial was clearly erroneous, the double jeopardy clause required that the jury's implicit acquittal be respected.\122\

NOTES:

\121\The decision necessarily overruled Trono v. United States, 199 U.S. 521 (1905), although the Court purported to distinguish the decision. Green v. United States, 355 U.S. 184, 194-97 (1957). See also Brantley v. Georgia, 217 U.S. 284 (1910) (no due process violation where defendant is convicted of higher offense on second trial).

\122\See also Price v. Georgia, 398 U.S. 323 (1970). The defendant was tried for murder and was convicted of involuntary manslaughter. He obtained a reversal, was again tried for murder, and again convicted of involuntary manslaughter. Acknowledging that, after reversal, Price could have been tried for involuntary manslaughter, the Court nonetheless reversed the second conviction because he had been subjected to the hazard of twice being tried for murder, in violation of the double jeopardy clause, and the effect on the jury of the murder charge being pressed could have prejudiced him to the extent of the second conviction. But cf. Morris v. Mathews, 475 U.S. 237 (1986) (inadequate showing of prejudice resulting from reducing jeopardy-barred conviction for aggravated murder to non-jeopardy-barred conviction for first degree murder). ``To prevail in a case like this, the defendant must show that, but for the improper inclusion of the jeopardy-barred charge, the result of the proceeding probably would have been different.'' Id. at 247.

Still another exception arises out of appellate reversals grounded on evidentiary insufficiency. Thus, in Burks v. United States,\123\ the appellate court set aside the defendant's conviction on the basis that the prosecution had failed to rebut defendant's proof of insanity. In directing that the defendant could not be retried, the Court observed that if the trial court ``had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered and, of course, petitioner could not be retried for the same offense. . . . [I]t should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.''\124\ The policy underlying the clause of not allowing the prosecution to make repeated efforts to convict forecloses giving the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. On the other hand, if a reviewing court reverses a jury conviction because of its disagreement on the weight rather than the sufficiency of the evidence, retrial is permitted; the appellate court's decision does not mean that acquittal was the only proper course, hence the deference required for acquittals is not merited.\125\ Also, the Burks rule does not bar reprosecution following a reversal based on erroneous admission of evidence, even if the remaining properly admitted evidence would be insufficient to convict.\126\

NOTES:

\124\Id. at 10-11. See also Greene v. Massey, 437 U.S. 19 (1978) (remanding for determination whether appellate majority had reversed for insufficient evidence or whether some of the majority had based decision on trial error); Hudson v. Louisiana, 450 U.S. 40 (1981) (Burks applies where appellate court finds some but insufficient evidence adduced, not only where it finds no evidence). Burks was distinguished in Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984), holding that a defendant who had elected to undergo a bench trial with no appellate review but with right of trial de novo before a jury (and with appellate review available) could not bar trial de novo and reverse his bench trial conviction by asserting that the conviction had been based on insufficient evidence. The two-tiered system in effect gave the defendant two chances at acquittal; under those circumstances jeopardy was not terminated by completion of the first entirely optional stage.

\125\Tibbs v. Florida, 457 U.S. 31 (1982). The decision was 5- to-4, the dissent arguing that weight and insufficiency determinations should be given identical double jeopardy clause treatment. Id. at 47 (Justices White, Brennan, Marshall, and Blackmun).

\126\Lockhart v. Nelson, 488 U.S. 33 (1988) (state may reprosecute under habitual offender statute even though evidence of a prior conviction was improperly admitted; at retrial, state may attempt to establish other prior convictions as to which no proof was offered at prior trial).

Sentence Increases. -- The double jeopardy clause protects against imposition of multiple punishment for the same offense.\127\ The application of the principle leads, however, to a number of complexities. In a simple case, it was held that where a court inadvertently imposed both a fine and imprisonment for a crime for which the law authorized one or the other but not both, it could not, after the fine had been paid and the defendant had entered his short term of confinement, recall the defendant and change its judgment by sentencing him to imprisonment only.\128\ But the Court has held that the imposition of a sentence does not from the moment of imposition have the finality that a judgment of acquittal has. Thus, it has long been recognized that in the same term of court and before the defendant has begun serving the sentence the court may recall him and increase his sentence.\129\ Moreover, a defendant who is retried after he is successful in overturning his first conviction is not protected by the double jeopardy clause against receiving a greater sentence upon his second conviction.\130\ An exception exists with respect to capital punishment, the Court having held that government may not again seek the death penalty on retrial when on the first trial the jury had declined to impose a death sentence.\131\

NOTES:

\128\Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).

\129\Bozza v. United States, 330 U.S. 160 (1947). See also Pollard v. United States, 352 U.S. 354, 359-60 (1957) (imposition of prison sentence two years after court imposed an invalid sentence of probation approved). Dicta in some cases had cast doubt on the constitutionality of the practice. United States v. Benz, 282 U.S. 304, 307 (1931). However, United States v. DiFrancesco, 449 U.S. 117, 133-36, 138-39 (1980), upholding a statutory provision allowing the United States to appeal a sentence imposed on a ``dangerous special offender,'' removes any doubt on that score. The Court there reserved decision on whether the government may appeal a sentence that the defendant has already begun to serve.

\130\North Carolina v. Pearce, 395 U.S. 711, 719-21 (1969). See also Chaffin v. Stynchcombe, 412 U.S. 17, 23-24 (1973). The principle of implicit acquittal of an offense drawn from Green v. United States, 355 U.S. 184 (1957), does not similarly apply to create an implicit acquittal of a higher sentence. Pearce does hold that a defendant must be credited with the time served against his new sentence. Supra, 395 U.S. at 717-19.

\131\Bullington v. Missouri, 451 U.S. 430 (1981). Four Justices dissented. Id. at 447 (Justices Powell, White, Rehnquist, and Chief Justice Burger). The Court disapproved Stroud v. United States 251 U.S. 15 (1919), although formally distinguishing it. Bullington was followed in Arizona v. Rumsey, 467 U.S. 203 (1984), also involving a separate sentencing proceeding in which a life imprisonment sentence amounted to an acquittal on imposition of the death penalty. Rumsey was decided by 7-2 vote, with only Justices White and Rehnquist dissenting.

Applying and modifying these principles, the Court narrowly approved the constitutionality of a statutory provision for sentencing of ``dangerous special offenders,'' which authorized prosecution appeals of sentences and permitted the appellate court to affirm, reduce, or increase the sentence.\132\ The Court held that the provision did not offend the double jeopardy clause. Sentences had never carried the finality that attached to acquittal, and its precedents indicated to the Court that imposition of a sentence less than the maximum was in no sense an ``acquittal'' of the higher sentence. Appeal resulted in no further trial or other proceedings to which a defendant might be subjected, only the imposition of a new sentence. An increase in a sentence would not constitute multiple punishment, the Court continued, inasmuch as it would be within the allowable sentence and the defendant could have no legitimate expectation of finality in the sentence as first given because the statutory scheme alerted him to the possibility of increase. Similarly upheld as within the allowable range of punishment contemplated by the legislature was a remedy for invalid multiple punishments under consecutive sentences: a shorter felony conviction was vacated, and time served was credited to the life sentence imposed for felony-murder. Even though the first sentence had been commuted and hence fully satisfied at the time the trial court revised the second sentence, the resulting punishment was ``no greater than the legislature intended,'' hence there was no double jeopardy violation.\133\

NOTES:

\133\Jones v. Thomas, 491 U.S. 376, 381-82 (1989).

Sometimes as difficult as determining when a defendant has been placed in jeopardy is determining whether he was placed in jeopardy for the same offense. As noted previously, the same conduct may violate the laws of two different sovereigns, and a defendant may be proceeded against by both because each may have different interests to serve.\134\ The same conduct may transgress two or more different statutes, because laws reach lesser and greater parts of one item of conduct, or may violate the same statute more than once, as when one robs several people in a group at the same time.

NOTE:

Legislative Discretion as to Multiple Sentences. -- It frequently happens that one activity of a criminal nature will violate one or more laws or that one or more violations may be charged.\135\ Although the question is not totally free of doubt, it appears that the double jeopardy clause does not limit the legislative power to split a single transaction into separate crimes so as to give the prosecution a choice of charges that may be tried in one proceeding, thereby making multiple punishments possible for essentially one transaction.\136\ ``Where a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the `same' conduct under Blockburger, a court's task of statutory construction is at an end and . . . . the trial court or jury may impose cumulative punishment under such statutes in a single trial.''\137\ The clause does, however, create a rule of construction, a presumption against the judiciary imposing multiple punishments for the same transaction unless Congress has ``spoken in language that is clear and definite''\138\ to pronounce its intent that multiple punishments indeed be imposed. The commonly used test in determining whether Congress would have wanted to punish as separate offenses conduct occurring in the same transaction, absent otherwise clearly expressed intent, is the ``same evidence'' rule. The rule, announced in Blockburger v. United States,\139\ ``is 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 a fact which the other does not.'' Thus, in Gore v. United States,\140\ the Court held that defendant's one act of selling narcotics had violated three distinct criminal statutes, each of which required proof of a fact not required by the others; prosecuting him on all three counts in the same proceeding was therefore permissible.\141\ So too, the same evidence rule does not upset the ``established doctrine'' that, for double jeopardy purposes, ``a conspiracy to commit a crime is a separate offense from the crime itself,''\142\ or the related principle that Congress may prescribe that predicate offenses and ``continuing criminal enterprise'' are separate offenses.\143\ On the other hand, in Whalen v. United States,\144\ the Court determined that a defendant could not be separately punished for rape and for killing the same victim in the perpetration of the rape, because it is not the case that each statute requires proof of a fact that the other does not, and no indication existed in the statutes and the legislative history that Congress wanted the separate offenses punished.\145\ In this as in other areas, a guilty plea ordinarily precludes collateral attack.\146\

NOTES:

\136\Albernaz v. United States, 450 U.S. 333, 343-44 (1981) (defendants convicted on separate counts of conspiracy to import marijuana and conspiracy to distribute marijuana, both charges relating to the same marijuana.) The concurrence objected that the clause does preclude multiple punishments for separate statutory offenses unless each requires proof of a fact that the others do not. Id. at 344. Inasmuch as the case involved separate offenses which met this test, Albernaz strictly speaking is not a square holding and previous dicta is otherwise, but Albernaz is well-considered dicta in view of the positions of at least four of its Justices who have objected to the dicta in other cases suggesting a constitutional restraint by the clause. Whalen v. United States, 445 U.S. 684, 695, 696, 699 (1980) (Justices White, Blackmun, Rehnquist, and Chief Justice Burger).

\137\Missouri v. Hunter, 459 U.S. 359 (1983) (separate offenses of ``first degree robbery,'' defined to include robbery under threat of violence, and ``armed criminal action''). Only Justices Marshall and Stevens dissented, arguing that the legislature should not be totally free to prescribe multiple punishment for the same conduct, and that the same rules should govern multiple prosecutions and multiple punishments.

\138\United States v. Universal C.I.T. Corp., 344 U.S. 218, 221- 22 (1952).

\139\284 U.S. 299, 304 (1932). This case itself was not a double jeopardy case, but it derived the rule from Gavieres v. United States, 220 U.S. 338, 342 (1911), which was a double jeopardy case. See also Carter v. McClaughry, 183 U.S. 365 (1902); Morgan v. Devine, 237 U.S. 632 (1915); Albrecht v. United States, 273 U.S. 1 (1927); Pinkerton v. United States, 328 U.S. 640 (1946); American Tobacco Co. v. United States, 328 U.S. 781 (1946); United States v. Michener, 331 U.S. 789 (1947); Pereira v. United States, 347 U.S. 1 (1954); Callanan v. United States, 364 U.S. 587 (1961).

\140\357 U.S. 386 (1958).

\141\See also Albernaz v. United States, 450 U.S. 333 (1981); Iannelli v. United States, 420 U.S. 770 (1975) (defendant convicted on two counts, one of the substantive offense, one of conspiracy to commit the substantive offense; defense raised variation of Blockburger test, Wharton's Rule requiring that one may not be punished for conspiracy to commit a crime when the nature of the crime necessitates participation of two or more persons for its commission; Court recognized Wharton's Rule as a double-jeopardy inspired presumption of legislative intent but held that congressional intent in this case was ``clear and unmistakable'' that both offenses be punished separately).

\142\United States v. Felix, 112 S. Ct. 1377, 1385 (1992).

\143\Garrett v. United States, 471 U.S. 773 (1985) (``continuing criminal enterprise'' is a separate offense under the Comprehensive Drug Abuse Prevention and Control Act of 1970).

\144\445 U.S. 684 (1980).

\145\The Court reasoned that a conviction for killing in the course of rape could not be had without providing all of the elements of the offense of rape. See also Jeffers v. United States, 432 U.S. 137 (1977) (no indication in legislative history Congress intended defendant to be prosecuted both for conspiring to distribute drugs and for distributing drugs in concert with five or more persons); Simpson v. United States, 435 U.S. 6 (1978) (defendant improperly prosecuted both for committing bank robbery with a firearm and for using a firearm to commit a felony); Bell v. United States, 349 U.S. 81 (1955) (simultaneous transportation of two women across state lines for immoral purposes one violation of Mann Act rather than two).

\146\United States v. Broce, 488 U.S. 563 (1989) (defendant who pled guilty to two separate conspiracy counts is barred from collateral attack alleging that in fact there was only one conspiracy and that double jeopardy applied).

Successive Prosecutions for ``the Same Offense.'' -- Successive prosecutions raise fundamental double jeopardy concerns extending beyond those raised by enhanced and multiple punishments. It is more burdensome for a defendant to face charges in separate proceedings, and if those proceedings are strung out over a lengthy period the defendant is forced to live in a continuing state of uncertainty. At the same time, multiple prosecutions allow the state to hone its trial strategies through successive attempts at conviction.\147\ In Brown v. Ohio,\148\ the Court, apparently for the first time, applied the same evidence test to bar successive prosecutions in state court for different statutory offenses involving the same conduct. The defendant had been convicted of ``joyriding,'' of operating a motor vehicle without the owner's consent, and was then prosecuted and convicted of stealing the same automobile. Because the state courts had conceded that joyriding was a lesser included offense of auto theft, the Court observed that each offense required the same proof and for double jeopardy purposes met the Blockburger test. The second conviction was overturned.\149\ Application of the same principles resulted in a holding that a prior conviction of failing to reduce speed to avoid an accident did not preclude a second trial for involuntary manslaughter, inasmuch as failing to reduce speed was not a necessary element of the statutory offense of manslaughter, unless the prosecution in the second trial had to prove failing to reduce speed to establish this particular offense.\150\ In Grady v. Corbin,\151\ the Court modified the Brown approach, stating that the appropriate focus is on same conduct rather than same evidence. A subsequent prosecution is barred, the Court explained, if the government, to establish an essential element of an offense, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.\152\ The Brown Court had noted some limitations applicable to its holding,\153\ and more have emerged subsequently. Principles appropriate in the ``classically simple'' lesser-included offense and related situations are not readily transposible to ``multilayered conduct'' governed by the law of conspiracy and continuing criminal enterprise, and it remains the law that ``a substantive crime and a conspiracy to commit that crime are not the `same offense' for double jeopardy purposes.''\154\

NOTES:

\148\432 U.S. 161 (1977). Cf. In re Nielson, 131 U.S. 176 (1889) (prosecution of Mormon for adultery held impermissible following his conviction for cohabiting with more than one woman, even though second prosecution required proof of an additional fact--that he was married to another woman).

\149\See also Harris v. Oklahoma, 433 U.S. 682 (1977) (defendant who had been convicted of felony murder for participating in a store robbery with another person who shot a store clerk could not be prosecuted for robbing the store, since store robbery was a lesser- included crime in the offense of felony murder).

\150\Illinois v. Vitale, 447 U.S. 410 (1980).

\151\495 U.S. 508 (1990).

\152\Id. at 521 (holding that the state could not prosecute a traffic offender for negligent homicide because it would attempt to prove conduct for which the defendant had already been prosecuted-- driving while intoxicated and failure to keep to the right of the median).

\153\The Court suggested that if the legislature had provided that joyriding is a separate offense for each day the vehicle is operated without the owner's consent, so that the two indictments each specifying a different date on which the offense occurred would have required different proof, the result might have been different, but this, of course, met the Blockburger problem. Brown v. Ohio, 432 U.S. 161, 169 n.8 (1977). The Court also suggested that an exception might be permitted where the State is unable to proceed on the more serious charge at the outset because the facts necessary to sustain that charge had not occurred or had not been discovered. Id. at 169 n.7. See also Jeffers v. United States, 432 U.S. 137, 150-54 (1977) (plurality opinion) (exception where defendant elects separate trials); Ohio v. Johnson, 467 U.S. 493 (1984) (trial court's acceptance of guilty plea to lesser included offense and dismissal of remaining charges over prosecution's objections does not bar subsequent prosecution on those ``remaining'' counts).

\154\United States v. Felix, 112 S. Ct. 1377, 1384 (1992).

The ``Same Transaction'' Problem. -- The same conduct may also give rise to multiple offenses in a way that would satisfy the Blockburger test if that conduct victimizes two or more individuals, and therefore constitutes a separate offense as to each of them. In Hoag v. New Jersey,\155\ before the double jeopardy clause was applied to the States, the Court found no due process problem in successive trials arising out of a tavern hold-up in which five customers were robbed. Ashe v. Swenson,\156\ however, presented the Court with the Hoag fact situation directly under the double jeopardy clause. The defendant had been acquitted at trial of robbing one player in a poker game; the defense offered no testimony and did not contest evidence that a robbery had taken place and that each of the players had lost money. A second trial was held on a charge that the defendant had robbed a second of the seven poker players, and on the basis of stronger identification testimony the defendant was convicted. Reversing the conviction, the Court held that the doctrine of collateral estoppel\157\ was a constitutional rule made applicable to the States through the double jeopardy clause. Because the only basis upon which the jury could have acquitted the defendant at his first trial was a finding that he was not present at the robbery, hence was not one of the robbers, the State could not relitigate that issue; with that issue settled, there could be no conviction.\158\ Several Justices would have gone further and required a compulsory joinder of all charges against a defendant growing out of a single criminal act, occurrence, episode, or transaction, except where a crime is not discovered until prosecution arising from the same transaction has begun or where the same jurisdiction does not have cognizance of all the crimes.\159\ But the Court has ``steadfastly refused to adopt the `single transaction' view of the Double Jeopardy Clause.''\160\

NOTES:

\156\397 U.S. 436 (1970).

\157\```Collateral estoppel' is an awkward phrase . . . [which] means simply that when an issue of ultimate fact has once been determined by a final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.'' Id. at 443. First developed in civil litigation, the doctrine was applied in a criminal case in United States v. Oppenheimer, 242 U.S. 85 (1916). See also Sealfon v. United States, 332 U.S. 575 (1948).

\158\Ashe v. Swenson, 397 U.S. 436, 466 (1970). See also Harris v. Washington, 404 U.S. 55 (1971); Turner v. Arkansas, 407 U.S. 366 (1972). Cf. Dowling v. United States, 493 U.S. 342 (1990), in which the Court concluded that the defendant's presence at an earlier crime for which he had been acquitted had not necessarily been decided in his acquittal. Dowling is distinguishable from Ashe, however, because in Dowling the evidence relating to the first conviction was not a necessary element of the second offense.

\159\Ashe v. Swenson, 397 U.S. 436, 448 (1970) (Justices Brennan, Douglas, and Marshall concurring). Justices Brennan and Marshall adhered to their position in Brown v. Ohio, 432 U.S. 161, 170 (1977) (concurring); and Thompson v. Oklahoma, 429 U.S. 1053 (1977) (dissenting from denial of certiorari).

\160\Garrett v. United States, 471 U.S. 773, 790 (1985). Earlier, the approach had been rejected by Chief Justice Burger in Ashe v. Swenson, 397 U.S. 436, 468 (1970) (dissenting), by him and Justice Blackmun in Harris v. Washington, 404 U.S. 55, 57 (1971) (dissenting), and, perhaps, by Justice Rehnquist in Turner v. Arkansas, 407 U.S. 366, 368 (1972) (dissenting).