Fifth Amendment of the U.S. Constitution Governs

¶ … Fifth Amendment of the U.S. Constitution governs the issue of double jeopardy and states in pertinent part, "No person… shall… be subject for the same offense to be twice put in jeopardy of life or limb…( )." The Amendment was a codification of the common law that had long recognized the doctrine that a defendant should not be subject to multiple attempts by the state to convict him for the same crime. On its face, the Fifth Amendment appears to be clear but there are nuances that are been interpreted over the years that make its application more intriguing including the possibility, that given certain circumstances, defendants can face double jeopardy.

The recognition that double jeopardy was a legal reality began when the U.S. Supreme Court rendered its decisions in Bartkus v. Illinois (Bartkus v. Illinois, 1959) and Abbate v. United States (Abbate v. United States, 1959). Beginning with these cases, the United States Supreme Court fashioned a rule that stated that the Constitution, pursuant to the dual sovereignty clause, did not prevent a federal or state prosecution of an individual for a crime arising out of the same act. Interestingly, the Court in rendering both decisions recognized the importance of the double jeopardy doctrine but, at the same time, also recognized that our system of government is a based on the concepts of federalism and, therefore, the sovereignty of both the states and the national government are important. Bartkus and Abbate opened the door for defendants to be exposed to the possibility of facing multiple trials for the same offense.

The legal theory behind dual sovereignty is that each sovereign possesses the right to enforce its own laws and that each sovereign's laws address different interests (U.S. v. Lanza, 1922). In the case of the individual states, the enforcement of criminal laws has been their province before the Constitution was ever formulated but, with the federal government becoming increasingly more involved in the area of criminal law (Merkl, 1999), its sovereignty has become more at issue in this area. Since the decisions in Bartkus and Abbate a long line of cases has recognized these dual interests and allowed state and federal prosecutions based upon the same set of facts giving rise to an offense. The U.S. Supreme Court, however, while refusing to abandon the dual sovereignty exception to the double jeopardy clause has established guidelines limiting the application of dual sovereignty to specific situations (Petite v. United States, 1960). In the case of Petite v. United States, the Supreme Court essentially ratified the policies set forth earlier by the U.S. Department of Justice in determining the conditions under which dual sovereignty would be recognized and the concepts of double jeopardy set aside (Podgor, 2004). Subsequent to the Supreme Court's decision in Petite the Justice Department guidelines referenced in Petite were formally codified in §9-2.031 of the United States Attorneys' Manual (Department of Justice). In its simplest form, the Petite policies presume that any prior trial conducted in a state court vindicate federal interests but allow for this presumption to be overcome by factors set forth that indicate that such interests have not been addressed.

This explanation of the multiple prosecution scenarios at the state and federal level is highly simplistic but it offers a glance into the fact that such prosecutions are allowable despite the provisions of the Fifth Amendment. Because of the fact that justice favors avoiding double jeopardy situations, the Petite exceptions are rarely applied but remain available for prosecutions in situations where justice demands it.

Arguably, the same argument can be made as to the prosecution of the same crime between two states. Two different states may have differing interests in regard to the prosecution of the same defendant. Each state is a sovereign state and has its own sovereign interests. In theory, the criminal prosecution of a defendant in one state may result in either a conviction or acquittal and yet not satisfy all the concerns of another state that has a related interest in the same crime. The sovereignty of any given state allows it the authority to pursue its individual interest so that if a state can establish jurisdiction and proper venue it can proceed with prosecution against a defendant that has already been either convicted or acquitted in another state.

Fortunately for potential defendants, this is a situation that rarely presents itself. Unlike the federal/state dichotomy, cases that qualify in two separate state jurisdictions are extremely rare. Venue requirements make the state where the crime occurred to be controlling and to be the source of the law that will govern the prosecution of the case. There is often an overlapping of federal and state jurisdiction but such is not the case between states. Unless there is a question as to where the crime occurred, the transportation of a body or property, or a border dispute one state would form the site for the criminal action.