NCJ Number
13770
Journal
Texas Law Review Volume: 52 Issue: 2 Dated: (JANUARY 1974) Pages: 303-350
Date Published
1974
Length
48 pages
Annotation
DISCUSSION OF THE ISSUES RAISED BY THE CRIMINAL APPEALS ACT OF 1971 WHICH ALLOWS THE PROSECUTION TO APPEAL A TRIAL COURT'S DISMISSAL OF AN INFORMATION OR INDICTMENT.
Abstract
THE ACT IN EFFECT REMOVED ALL LIMITATIONS BUT THE DOUBLE JEOPARDY CLAUSE FROM THE GOVERNMENT'S RIGHT TO APPEAL A CRIMINAL DISMISSAL. HOWEVER, IT RAISES AN ASPECT OF THE DOUBLE JEOPARDY CLAUSE--APPEAL AND RETRIAL AS FUNCTIONS OF THE SAME CRIMINAL PROSECUTION AFTER A TRIAL COURT DISMISSAL--FOR WHICH THE SUPREME COURT HAS NOT YET NEEDED TO DEVELOP A GUIDING APPROACH. IN TIME THE COURT MUST CONFRONT THE PROBLEM. THE GOVERNMENT'S INTEREST IN CONVICTING THE GUILTY AND THE DEFENDANT'S INTEREST IN AVOIDING THE PSYCHOLOGICAL STIGMA, HARASSMENT, AND EXPENSE OF A SECOND TRIAL CLASH AFTER EVERY DISMISSAL. A RULE BASED SOLELY ON THE WEIGHING OF THESE FACTORS COULD NOT ESTABLISH CLEAR STANDARDS FOR ADJUDICATION AND WOULD SUBJECT CONSTITUTIONAL DECISIONMAKING TO THE PERSONAL PRIORITIES AND PREJUDICES OF INDIVIDUAL JUDGES. CONSEQUENTLY, WHILE THESE INTERESTS OUGHT NOT BE IGNORED, NEITHER SHOULD THEY BE DISPOSITIVE. ONE OF THE DEFENDANT'S STRONGEST INTERESTS LIES IN PROCEEDING TO FINAL JUDGMENT AND POSSIBLE ACQUITTAL FROM THE FIRST JUDGE OR FIRST IMPANELED JURY. THE SIGNIFICANCE OF THIS INTEREST VARIES ACCORDING TO THE TRIAL STAGE AT WHICH DISMISSAL OCCURS. APPEAL AFTER DISMISSAL AT THE PRETRIAL OR POSTTRIAL STAGE NORMALLY WOULD NOT UNREASONABLY BURDEN THE DEFENDANT. DISMISSAL AT PRETRIAL OCCURS BEFORE JURY SELECTION AND PRESENTATION OF MOST OF THE EVIDENCE. THUS APPELLATE REVERSAL AND RETRIAL MERELY REPRESENT THE MOTION TO DISMISS. APPELLATE REVERSAL AFTER A POSTVERDICT DISMISSAL NORMALLY LEADS TO REINSTATEMENT OF A CONVICTION. AS IN THE PRETRIAL SITUATION, REVERSAL RESULTS IN A CONTINUATION WITHOUT ANY POTENTIAL FOR PROSECUTORIAL ABUSE IN SELECTING A JURY OR STRENGTHENING THE EVIDENCE TO THE DEFENDANT'S DISADVANTAGE. A DISMISSAL DURING TRIAL, UNLIKE DISMISSAL AT OTHER STAGES, CANNOT BE REVERSED ON APPEAL WITHOUT SUBJECTING THE DEFENDANT TO RETRIAL BEFORE A SECOND JURY AND A PROSECUTOR WHO HAS OBSERVED PART OF THE TRIAL TESTIMONY. (AUTHOR ABSTRACT)