CRIMINAL PROCEDURECRIMINAL PROCEDURE

Class Fourteen

Today’s TopicsToday’s Topics

Overview: “Protections”Impact of AcquittalD’s AppealSecond Trial of Convicted D

– “Same Offense”– D Responsible

Today’s TopicsToday’s Topics

Collateral EstoppelDual SovereignsAborted ProceedingsVindictiveness

Double JeopardyDouble Jeopardy

Chapter Twelve

Constitutional ProvisionConstitutional Provision

Fifth Amendment– [N]or shall any person be subject for the same

offense to be twice put in jeopardy of life or limb

Applicable to state prosecutions [Incorporation Doctrine] in 1969

Common Fact PatternsCommon Fact Patterns

Second prosecution after acquittalSecond prosecution after convictionMultiple punishments

Acquittal Consequences for Acquittal Consequences for ProsecutionProsecution

Second prosecution barred -- even if acquittal was a mistake

No appeal from acquittal -- even if rulings supporting acquittal were incorrect

No new trial from jury verdict of acquittal

Determining if Court Action = Determining if Court Action = AcquittalAcquittal

United States v. Scott– Final determination of guilt/innocence

necessary– Contrast with mistrial– Contrast with dismissal

Determining if Court Action = Determining if Court Action = AcquittalAcquittal

Sanabria v. United States– Trial judge believed he was construing

indictment and ruling on merits

United States v. Martin Lemon– If trial judge enters judgment of acquittal before

jury reaches verdict, that determination is final

Defendant’s AppealDefendant’s Appeal

Issue: What is the double jeopardy effect of a reversal?

Concept: Results vary depending on the ground on which reversal is based [sufficiency vs. trial error]

Reversal: Insufficient Reversal: Insufficient EvidenceEvidence

Issue: Does it make a difference whether it is reviewing court or trial court/jury that determines evidence is insufficient– Remember: Finding of insufficient evidence at trial =

verdict of acquittal

Burks v. United States Jeopardy interest: Prohibits prosecution from

another opportunity to supply or muster evidence it failed to provide in first case

Sufficiency vs. Trial ErrorSufficiency vs. Trial Error

Reversal for trial error does not equate to decision that gov’t failed to prove its case– Implies nothing about guilt/innocence– Is determination that D has been convicted

through process that is defective– Therefore, no jeopardy bar for retrial

Balancing InterestsBalancing Interests

D has strong interest in fair determination of guilt free from fundamental error

Society has valid interest in ensuring guilty are punished.

Reversal: Trial Court ErrorReversal: Trial Court Error

Considering “improper” evidence in gauging sufficiency– Issue: What impact when legally competent evidence

is insufficient but trial judge erroneously allowed incompetent evidence to be introduced at trial [and the resulting combination was sufficient]

– Lockhart v. Nelson

Defective charging instrument– Montana v. Hall

Reversal: Trial Court ErrorReversal: Trial Court Error

Weight v. Sufficiency– Tibbs v. Florida

Second Trial of Convicted DSecond Trial of Convicted D

Concept: Following valid conviction, the same offense cannot be prosecuted again

Problem: Determining what is the same offense– Examples: lesser included offense [think: aggravated

robbery with gun, non-weapon robbery]; closely related offenses [think: speeding and failure to use turn signal in same transaction]

Analytical Key: Blockburger Rule

Blockburger TestBlockburger Test

Asks whether each statutory provision contains an element the other does not

BlockburgerBlockburger

Crime One

A B C

Crime Two

A B D

Blockburger ExamplesBlockburger Examples

Brown v. Ohio– Joyriding as lesser included of auto theft– Second conviction violated double jeopardy

Grady v. Corbin– Now abandoned “same conduct” test– Constitutional detour

Blockburger ExamplesBlockburger Examples

United States v. Dixon– Criminal contempt & possession drugs

Rutledge v. United States– Elements of conspiracy and “in concert” aspect

of CCE [continuing criminal enterprise]

Recap: Blockburger Recap: Blockburger ApplicationApplication

Separate– Crime One

A B C

– Crime Two A B D

Same– Crime One

A B C

– Crime Two A B C

Lesser Included– Crime One

A B C

– Crime Two A B

Remedy for ViolationsRemedy for Violations

Frequently, reversal and dismissal of results in second prosecution

“Reformation”– Morris v. Matthews [reduced to conviction for

lesser included offense] D burden: “reasonable probability would not have

been convicted of non-jeopardy barred offense absent presence of jeopardy-barred offense”

When D Responsible for When D Responsible for Multiple ProsecutionsMultiple Prosecutions

Concept: If D is responsible for multiple prosecutions, double jeopardy limitation not applicable– Jeffers v. United States [D opposed government

attempt to consolidate] Cf, Rutledge

– Ohio v. Johnson [D chose over gov’t objection to split offenses]

Caution: As matter of state law, later trial might raise question of cumulative punishments

Collateral EstoppelCollateral Estoppel

Collateral Estoppel: Collateral Estoppel: BackgroundBackground

Multiple victims = multiple offenses

May be circumstances when even separate trials on distinct offenses are constitutionally barred --- when cases have ultimate fact in common

Constitutional basis: Due Process clause

Ashe v. Swenson: The FactsAshe v. Swenson: The Facts

Accused defendants– 1– 2– 3– 4

Criminal conduct– Robbery– Car theft

Crime Victims– 1– 2– 3– 4– 5– 6

Total possible charges per defendant: 7

Ashe FactsAshe Facts

Trial One [Victim X]– Gov’t evidence that D had been one of robbers was

weak– Jury returns verdict of not guilty– Verdict recites: “not guilty due to insufficient

evidence”

Trial Two [Victim Y]– Six weeks later

Collateral EstoppelCollateral Estoppel

Principle: when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit

Determining “Ultimate Fact”Determining “Ultimate Fact”

Consider– Pleadings– Evidence at trial– Charge [jury instruction]– Other relevant matter

Conclude whether a rational jury could have granted its verdict on an issue other than the fact on which D seeks to foreclose future litigation

Dual SovereignsDual Sovereigns

Constitutional ProtectionConstitutional Protection

When Double Jeopardy prohibits successive prosecutions, it does so only when those prosecutions are brought by the same sovereign

Dual Sovereign = possibility of dual prosecutions– Theory: each sovereign has been offended

Inherent in American Federalism

ExamplesExamples

Rodney KingAngleton prosecution in Houston

LimitationsLimitations

If one sovereign acting as “tool” of another --- sham, or cover– Bartkus v. Illinois

Current event update: Supreme Court is considering issue this term

Test Your KnowledgeTest Your Knowledge

Is a state a separate sovereign from the federal government?

Is city separate sovereign from state in which it is located?

Are individual states in the Union dual sovereigns vis a vis one another?

Are Indian nations separate sovereign [recent Supreme Court decision]?

Aborted ProceedingsAborted Proceedings

ScenariosScenarios

Trial ends prematurely

Mistrial declared

Examples: – Prosecutor improperly comments on D’s failure to

testify and D seeks mistrial– Prosecution’s key witness fails to appear in response to

subpoena– Jury is deadlocked and cannot reach verdict

Key TermsKey Terms

“Attachment”

“Manifest Necessity”

AttachmentAttachment

Jury trial– When jury empaneled and sworn

Bench trial [to the court]– When court begins to hear evidence

Mistrial over D’s ObjectionMistrial over D’s Objection

Critical concept: Manifest necessityGeneral rule: If there is manifest necessary,

then there is exception to double jeopardy protections

Test: Manifest necessity exists when end of public justice are not served if there is no retrial

Mistrial on D’s MotionMistrial on D’s Motion

Generally, no double jeopardy bar

Exception: conduct by prosecutor intended to “goad” D into moving for mistrial

VindictivenessVindictiveness

Issue: What, if any, limitations are imposed on courts and prosecutors when a case is retried.

Example: More time added to second sentence following successful appeal.– Query: Is D being punished for exercising her

right to appeal.

VindictivenessVindictiveness

Courts– North Carolina v. Pearce– Presumption of vindictiveness; can be

overcome

Prosecutors– Presumption