NCJ Number
44858
Journal
Journal of Criminal Law and Criminology Volume: 68 Issue: 4 Dated: (DECEMBER 1977) Pages: 555-570
Date Published
1977
Length
16 pages
Annotation
U.S. SUPREME COURT INTERPRETATIONS OF THE RIGHT AGAINST DOUBLE JEOPARDY ARE REVIEWED, IN CASES OF TRIAL OF A DEFENDANT TWICE FOR THE SAME OFFENSE AND OF SUCCESSIVE CONVICTION OF A DEFENDANT FOR TWO OFFENSES.
Abstract
IN THE FIRST OF THESE TWO DISTINCT ISSUES, THE COURT WAS CONCERNED WITH ALLOWING GOVERNMENT APPEALS OF DISMISSALS AFTER A HUNG JURY. IN THE SECOND, IT CONSIDERED THE QUESTION OF WHETHER AN INDIVIDUAL COULD BE SUCCESSIVELY CONVICTED OF TWO OFFENSES FOR CONDUCT ARISING OUT OF THE SAME ACT. IN SEVERAL CASES REGARDING THE REPROSECUTION ISSUE, THE SUPREME COURT HAS MADE INCONSISTENT RULINGS. IN ONE CASE, THE FINDING WAS THAT WHENEVER A HUNG JURY OR PROCEDURAL UNFAIRNESS IN THE FIRST TRIAL MAKES IT IMPOSSIBLE TO REACH A VERDICT IN THE FIRST TRIAL OR TO SUBMIT THE CASE TO THE JURY, A SECOND TRIAL MAY BE HELD IF NECESSARY TO RESOLVE THE QUESTION OF GUILT OR INNOCENCE. IN ANOTHER, IT DETERMINED THAT THE GOVERNMENT COULD NOT APPEAL A JUDGMENT OF ACQUITTAL FOLLOWING A HUNG JURY. THE SIGNIFICANT TREND, HOWEVER, HAS BEEN THE COURT'S EMPHASIS ON THE REASONS FOR THE TERMINATION OF THE FIRST PROCEEDING -- PERMITTING RETRIAL IF THE FIRST PROCEEDING TERMINATED ON GROUNDS CONSISTENT WITH REPROSECUTION, BUT BARRING RETRIAL OR APPEAL IF IT TERMINATED ON THE BELIEF THAT THE DEFENDANT COULD NOT BE CONVICTED OF THE OFFENSE AS CHARGED. IN THE ISSUE OF TRIAL FOR TWO CHARGES ARISING FROM THE SAME CONDUCT, THE COURT HAS ADDRESSED TWO QUESTIONS: (1) WHETHER THE TWO STATUTORY OFFENSES CONSTITUTE THE 'SAME OFFENSE' WITHIN THE MEANING OF THE DOUBLE JEOPARDY CLAUSE; AND (2) WHETHER A DEFENDANT WHO OBJECTS TO THE CONSOLIDATION OF CHARGES AGAINST HIM WAIVES HIS RIGHT AGAINST SUCCESSIVE PROSECUTIONS FOR THE 'SAME OFFENSE.' TWO TESTS ARE APPLIED TO DETERMINE 'SAME OFFENSE': THE 'SAME EVIDENCE' TEST, WHICH PROHIBITS SUCCESSIVE PROSECUTION OF CLOSELY RELATED CHARGES IF THE SAME ELEMENTS REQUIRED TO PROVE ONE OFFENSE ARE SUFFICIENT TO CONVICT OF THE OTHER; AND THE 'RULE OF LENITY,' WHICH RELATES TO STATUTORY CONSTRUCTION. IF THE LEGISLATORS HAVE NOT CLEARLY INDICATED AN INTENT TO PUNISH A DEFENDANT FOR TWO COSELY RELATED OFFENSES ARISING OUT OF A SINGLE ACT, THE COURT WILL FAVOR LENIENCY AND VOID THE SECOND CONVICTION OR REDUCE THE PUNISHMENT. IN ADDITION, THE COURT HAS ESTABLISHED THAT IF A DEFENDANT IS PARTLY RESPONSIBLE FOR THE FACT THAT HE WAS SUCCESSIVELY PROSECUTED, HE DOES WAIVE HIS DOUBLE JEOPARDY RIGHTS. (VDA)