Double Jeopardy: Multiple Prosecutions and Legislative Limits

Introduction to the Double Jeopardy Clause

The legal concept of Double Jeopardy is relatively simple to define and understand, but its application is anything but straightforward. On a basic level, Double Jeopardy is a limitation on court proceedings that prevents the same person from being tried for the same crime twice, regardless of the verdict or outcome of the first trial. As with all legal procedures and rules of order, however, there are exceptions. In cases where new evidence emerges that could demonstrate a person's innocence, a new trial may be considered warranted because the outcome could not adversely affect the already-convicted person. If, however, the new evidence could prove an already-acquitted person guilty, then Double Jeopardy rules become applicable.

Given the broad nature of this topic, it is useful to examine the problems of multiple prosecutions and how they are limited and prevented by the Double Jeopardy Clause, as well as to explore the interpretation of that Clause as a substantive limitation on the legislature's ability to create punishments and define crimes. Double Jeopardy actively prevents multiple prosecutions and overlapping punishments for the same crime.

The Fifth Amendment and Protection Against Multiple Prosecutions

The Fifth Amendment to the United States Constitution clearly states that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb" (United States Constitution, 5th Amendment). The Double Jeopardy Clause protects criminal defendants from most government appeals of acquittals, even where "the acquittal was based upon an egregiously erroneous foundation" (Kappeler, 989).

The ability to appeal criminal verdicts is asymmetrical. When a court or jury finds a criminal defendant not guilty, that determination is normally unassailable, because the losing party — the government — may not appeal. Criminal defendants, on the other hand, may appeal. There is one exception to this asymmetry: prosecutors may appeal purely legal determinations that would require no further fact-finding. Determining whether an appeal is available thus hinges on whether the issue to be appealed implicates solely legal determinations. Because prosecutors so seldom attempt to appeal acquittals, virtually no case law confronts the law-fact distinction in the acquittal-appeal context. In fact, law-fact distinction jurisprudence suggests that the exception permitting acquittal appeals is far broader than is generally recognized (Algona, 1131).

The underlying framework of the Double Jeopardy Clause 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" (United States Constitution, 5th Amendment). The Supreme Court of the United States has repeatedly determined that the Double Jeopardy Clause expressly protects individuals from being subjected to multiple prosecutions for the same offense. This protection extends to any person who has been criminally prosecuted, regardless of the outcome of the previous prosecution — a concept known as the "multiple prosecutions" doctrine. The Supreme Court has also determined that the Double Jeopardy Clause actively prohibits the infliction of multiple punishments for the same crime.

A jury, even after announcing its verdict, remains a deliberating jury so long as it has not been discharged by the court. Hence, a jury's possibility of reaching a "second" verdict — after a judge declines to accept its first verdict and orders further deliberation — actually constitutes the only verdict in the case and does not violate Double Jeopardy (Chenoweth (b), 84).

It is the question of multiple punishments that has caused the most legislative confusion and debate. The central problem is whether civil and criminal punishments imposed for the same underlying conduct can constitute Double Jeopardy. This was a point of contention in the civil proceedings against O.J. Simpson after he was acquitted in his criminal trial. The civil suit for wrongful death, not being a criminal case, could not have been considered double jeopardy under the multiple-prosecutions doctrine. However, had Simpson been imprisoned following the criminal trial and then subjected to a civil judgment requiring him to pay substantial damages — as he was — some courts could interpret that outcome as a violation of the multiple-punishments interpretation of the Double Jeopardy Clause. The Supreme Court has a mixed history, as do lower courts, in addressing this problem.

Multiple Punishments and Legislative Confusion

The interpretation of the Double Jeopardy Clause as protecting a person from multiple punishments traces back to Ex Parte Lange, where the Court held that "if there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence" (Limbaugh, 53). Since that ruling, the Supreme Court has generally held that Double Jeopardy protections extend to both successive criminal punishments and other successive punishments.

The counter-argument — that Double Jeopardy prohibits only multiple prosecutions — draws support from the large number of criminal cases in which a person receives multiple punishments for the commission of conduct that forms a single criminal episode. By breaking down a series of actions into discrete offenses, the state can punish the same person for multiple crimes that arise from the same incident. For example, consider a person who breaks into a home, rapes a minor, kills a pet, and steals a car, all within two hours. Because separate laws specifically prohibit each of these individual acts, it is logical to charge and prosecute each in turn within the same trial — resulting in one trial but multiple punishments. Justice Scalia concluded that, because the Due Process Clause ensures punishments do not exceed their legislated boundaries, and because both the Cruel and Unusual Punishment and Excessive Fines Clauses place further limits on those boundaries, imposing multiple penalties on the same person in the same trial for different crimes is permissible — even when those crimes occur simultaneously.

In cases involving acquittals, multiple prosecution has been strictly limited. For example, if a person stopped for suspected drunk driving is taken to municipal court and acquitted, no other court may try that person again for the same offense. As one New Jersey case illustrates, the record before the Law Division required rejection of the defendant's argument that an appeal was barred by double jeopardy because the municipal court record was confined solely to the circumstances of the traffic stop. Because the Law Division judge's order granting the defendant's motion to suppress was not a resolution of the merits of the drunk-driving charge, a judgment of acquittal should not have been entered — the appropriate remedy was a remand to the municipal court — and the use of the phrase "judgment of acquittal" did not bar the State's appeal (Chenoweth (a), 70).

Courts cannot, even in the event of a mistaken decision at a lower or higher level, put a person on trial for the same offense twice. Notably, up until the late 1980s, the Supreme Court appeared to have set aside the multiple-punishment doctrine, relying primarily on the multiple-prosecution doctrine for its Double Jeopardy analysis. While the Court did consider that imposition of a civil sanction could be barred by the Double Jeopardy Clause, it did so within the framework that a civil sanction was not "essentially civil" but "essentially criminal," and thus constituted an illegal second criminal prosecution. Not until the late 1980s did the Court specifically invoke the prohibition against multiple punishments as an independent constitutional basis for a Double Jeopardy claim.

Conclusion

Double Jeopardy protects people from vindictive and unjust prosecution by a government that, having failed once, would attempt to try the same person again. Once a person has been found guilty or not guilty of a crime, the matter is closed for all parties.