Double jeopardy

Double jeopardy is a phenomenon clause that there can be no successive prosecutions for the same offense (Gurewitsch, Brana, ed. Mothers, Sisters, Resisters. 1998). Exceptions have been renowned in situations linking aborted first trials (mistrials and dismissals) and certainties followed by successful plea by the accused. In these situations, the value of defending the defendant against vexatious second trials is rutted against the worth of giving the state a fair prospect to convict. The general thrust of the Burger-Rehnquist rulings has been to support retrials unless there has been a not responsible verdict or its equivalent (e.g. , a dismissal on the merits).

So in a case where charges were dismissed for reasons distinct to the guilt or innocence of the accused (viz. , prejudicial pretrial delay), the Burger Court permitted prosecutorial appeal and retrial. This is dependable with that Court's emphasis on the truth-finding function of the criminal trial. That is, while giving great weight to a defendant's interest in evading the agony of a persecution once exonerated, the Court gives greater weight to the state's interest in influential guilt or innocence by a complete trial if the defendant was not cleared.

The Fifth and Sixth Amendments detain the paradox between justice as a level playing field and fairness as consideration for the accused. usually terms, the Sixth Amendment tries to achieve equality of arms at trial, and the Fifth seeks to cut back the weapons of the prosecution in order to defend the innocent. According to the Fifth Amendment: No one shall be held for trial without being charged by a grand jury. No one shall be subject to double jeopardy, which means approximately that no one shall be tried twice for the same crime.

No one shall be enforced to incriminate himself. (De Silva, Carla, ed. 1996) These three principles bound the power of the prosecution. These are things the state may not do. It might not bring a person to trial without first testing the charge before a group of lay people called the grand jury. It may not impeach someone twice for the same offense, and it may not induce incriminating testimony. The purpose of these restrictions is not to empower David, but to contain Goliath.

This is fairness as solicitude for the accused--innocent until proven guilty. The condition concerning the grand jury vests in lay people the power to ensure the initiatives of government. Prosecutors cannot decide by themselves, as a minimum in serious cases, to take someone to trial, subject him to a distressing assault on his reputation, and impose upon him the risk of a criminal certainty. while the people say no, as did the first grand jury in the trial of Bernhard Goetz in January 1985, the prosecution falters.

It cannot ensue to trial, though convinced it may be of the guilt of the accused. This type of lay control on the power of the state is indefinite outside the English-speaking world. It imitates an Anglo-American approach to the design of a fair trial. The rule against double jeopardy emerges to be a strong protection against harassing suspects with multiple proceedings. The principle is that once the action brings an accused to trial, it crosses an in one direction border. If the jury is empanelled and sworn, the fate of the accused must be resolved.

There are several exceptions to this principle, as, for instance, when the jury cannot reach a undivided verdict one way or the other. So it was with the juries that first heard the facts against the Menendez brothers. Both juries deadlocked between those who required the clemency of a manslaughter certainty and those who knew murder when they "saw" it. Also, simply going before an imposing jury does not create "jeopardy. " If one grand jury refuses to accuses, as in the Goetz case, the prosecution can claim new evidence and convene a second grand jury that might be more positive to its arguments.

The principle of double jeopardy kicks in, usually, after the jury is empowered to decide the defendant's fate. The trial judge might not decide, mid-trial, that the prosecution has done a sloppy job preparing for trial, that the trial must be suspended, and that the prosecution must be given an added opportunity to collect evidence against the accused. The thought of a "day in court" is basic to our tradition. And once the day begins, it is not over until a decision is attained, the jury is deadlocked, or some other prevailing factors require a mistrial.

In the European inquisitorial tradition, which has endured in the former Communist legal systems, trial judges can hear the evidence, decide there is inadequate proof of guilt, and remand the case back to the prosecution. The fortune of the accused remains on hold. Keeping the accused dangling this way offends the American sense of fair play. After the game begins, you do not call "time out" for further training (Brown, Jean E. , Elaine C. Stephens, and Janet E. Rubin, 1999). The centralized prosecution of the four Los Angeles police officers struck numerous lay observers as a contravention of the principle of double jeopardy.

Powell, Koon, Briseno, and Wind were found not guilty in the state trial. How could they be stimulating again and thus "be twice put in jeopardy of life or Limb"? After the federal grand jury returned the indictments, the National Board of the ACLU, no friend of the police--condemned the federal intervention as a violation of the Fifth Amendment (The New York Times, April 5, 1993, A 10). Columnist William Safire came to the same conclusion (The New York Times, March 1, 1993, A 15). Once around the track, they said, must be enough: The Constitution prohibits a federal retrial for the same beating.

The Los Angeles chapter of the ACLU felt betrayed. How could the national board not understand the necessities of the situation? To paraphrase Stacey Koon, observers in the East did not understand "the truth of the society" that had to prosecute "in order to protect itself. " The New York Times, March 1, 1993, A 15. The official answer to the puzzle of double jeopardy needs some imagination. You have to imagine that we live in a federation of states, each state being independent and sovereign in its borders. The federal government stands especially 50 sovereign states as an independent sovereign.

State crimes injure a community defined by the state, and federal crimes injure the federal version of the similar people. Two sovereigns, two crimes. This might be a good argument if we lived in a loose federation like the European Community. European lawyers can eagerly imagine a crime against the entire European Community that would be distinct from a crime, say, against the Spanish government. But this is where the argument for federal power in the United States gets turned on its head. A federal government ready to mediate to correct injustices in the state courts is not exactly the insecurely joined European confederation.

The single nation that the United States has become can no longer pretend to be a sovereign entity removed from the individual states. Yet for purposes of the double-jeopardy clause, this is exactly the pretense that permits the second prosecution. This official doctrine of dual sovereignty should not be taken too critically. It is a good example of technical way of thinking in the law that masks the arguments that do the scoring. The real clarification for this exception to the double-jeopardy clause lies in an inquiring feature of criminal trials. We do not permit prosecutors to appeal jury verdicts of not guilty.

Each country in Continental Europe permits the prosecution to appeal as a way of correcting wayward verdicts for the accused. Even former English colonies, those like Israel that never had the jury system, permit the trial to appeal. Yet we insist that if the jury speaks for the accused, its voice is final. Rendering justice to both sides requires some accommodation, some compensation to the prosecution. The necessary compensation, is allowing the federal government to prosecute for an infringement of civil rights in the aftermath of a state jury acquittal.

Yet we are far from distinguishing that the federal government should prosecute for a deficiency of civil rights in every case in which a defendant has been unjustly acquitted. Witness the prolonged debate about federal intervention in the Yankel Rosenbaum case. Chronological factors shaped this intervention and partial it to cases in which the state has acted (police brutality) or perhaps to crimes that takes place on the public streets (Rosenbaum). Crimes that occur between private individuals on private property are excluded (Meir Kahane, Kennedy Smith).

Yet it seems that the public features of the slaying of Harvey Milk and George Moscone are sufficient to have acceptable a civil-rights action, and that theoretical prospect, whether technical arguments would take the case under the statute or not, must give us pause. It does certainly seem to exemplify the wrong of double jeopardy for the State to ensue a second time against a murder suspect after one jury has found him or her guilty of manslaughter. Under the language and theory of the civil-rights statutes, however, nothing must turn on whether the accused is exonerated or convicted at the state level (Baumel, Judith Tydor, 1998).

Basically, the double jeopardy problem measured here concerns multiple punishments i. e. , consecutive prison terms--for the "same offense" on a guilty outcome in a single trial (Lubell, Martha and Barbara Attic, 2000). There are two common situations. One entails multiple charges under a single statute for each of the victims of a single incident, such as when a drunk driver injures or kills numerous people in one accident. The second occurs when the same act simultaneously infringes more than one criminal law and the defendant is sentenced successively for each law violation.

An instance would be cumulative punishment for robbery and possession of stolen property. In both situations, though spared the burden of vexatious multiple trials, the defendant alleges a double jeopardy contravention in that he is being punished twice (or more) for the "same offense. " There is no proscription against trying a defendant once for multiple violations of the same law or for violating overlapping laws, so that a court could evade this double jeopardy setback by imposing concurrent sentences (Ohio v. Johnson, 467 U. S. 493, 1984).

Unfortunately, the Supreme Court has not said with sureness what is required by the double jeopardy provision while there are multiple punishments following a single trial. It has said that "at the very least," the Constitution prevents consecutive sentences unless authorized by the legislature, but whether it inflicts additional restrictions is unsettled (Whalen v. United States, 445 U. S. 684, 1980). The question then turns on the intention of the legislature; i. e. , did the lawmakers aim consecutive sentences on conviction for violating the statutes in question?

To answer this, the Supreme Court usually uses the same evidence" test resultant from the old case of Blockburger v. United States. The test needs a comparison of the elements of the crimes charged to determine "whether each provision needs proof of an added fact which the other does not. " For instance, a defendant could not be cumulatively punished for both joyriding and automobile theft because only the theft needs proof of an additional fact, viz. , and the intent to eternally deprive the owner of the property (Brown v. Ohio, 432 U. S. 161, 1977).

Under the Blockburger test, each crime should require proof of a fact not common to both. The Blockburger test, effectively, treats as the "same offense," for double jeopardy purposes, a crime and its lesser integrated offense. And since it is used to measure "same offense" generally, Blockburger becomes the test of choice for both consecutive prosecutions as well as multiple punishments after a single trial. In other words, one cannot be sentenced successively nor prosecuted consecutively for a crime and its lesser included offense (Ofer, Dalia and Lenore J. Weitzman, 1998).

The link among Blockburger, collateral estoppel and the same transaction test is rather confusing. In the successive prosecution circumstances, Blockburger applies whether or not there was a certainty in the first trial, whereas the collateral estoppel test is useful only after an acquittal. Though, collateral estoppel is not related to a single-trial situation. In addition, it would seem that Blockburger is not pertinent to prosecutions--single trial or successive-if only one statute is concerned, some of the state courts have so held (Ofer, Dalia and Lenore J.

Weitzman, 1998). Additionally, although Justice Brennan has favored the same transaction test as a measure of the "same offense" in the succeeding prosecution situation, he has not suggested it in the consecutive sentence situation. Nor has he explained why the test is a sound measure of "same offense" in one situation but not in the other. As, some state courts have applied the similar transaction standard in consecutive sentencing cases (Rittner, Carol and John K. Roth, 1993).

To obscure matters even further, the Supreme Court has not always used Blockburger to determine the goal of the legislature. In Missouri v. Hunter, Justice Brennan joined a seven-person majority upholding successive sentences for armed criminal action and for the lesser integrated offense of first-degree robbery. The Court held that the legislative aim to punish cumulatively for violating both statutes was explicit, rendering Blockburger irrelevant. Thus the federal test for multiple punishments (single trial) is twofold: legislative intention where it is clear; Blockburger where it is not.

As might be expected, there is substantial confusion among the states as to when and how Blockburger applies. For example, Kentucky and Tennessee ignore Blockburger and rely on the same transaction test, though even Justice Brennan appears unwilling to go this far (Jones v. Commonwealth, 756 S. W. 2d 462, Ky. 1988). The same transaction approach would seem to exclude consecutive sentences for single criminal episodes that consequence in injury to more than one victim or the contravention of more than one criminal statute (Schwarberg, Gunther, 2000).

Other states ( Louisiana, Michigan, New Hampshire, and Wyoming) use a disparity of the Blockburger test, the majority popular version of which focuses on whether the facts alleged in the denunciations are the same for both crimes (State v. Steele, 387 So. 2d 1175, La. 1980). As the New Hampshire Supreme Court described it, the test is "whether proof of the elements of the crimes as charged will in realism requires a difference in evidence. "

( State v. Steele, 387 So. 2d 1175, La.1980) excepting the fact that examining the facts charged by the executive branch seems an uncertain measure of the intent of the legislature, it is not obvious that this version of the same proof test provides defendants with any greater protection. For example, if a single criminal incident entails multiple victims or the transfer of diverse articles of contraband, some courts hold that proof of each different victim or article is adequate, under this test, to rationalize cumulative punishment.

There is also doubt as to whether Blockburger applies while there is consecutive sentencing for violation of a single statute. For example, when there are numerous victims but only one statute, several states supreme courts think Blockburger is inapplicable. Michigan asserts that it relies on the intention of the legislature without using Blockburger as a measure.

This inflicts practical complexities in that legislatures usually do not explain whether they aim multiple punishments, e. g., for drunk drivers who concurrently kill more than one person or for holdup men who deal with more than one store clerk. Alaska exemplifies the point. That state's Supreme Court claimed that it was relying on legislative aim when it barred multiple sentences for more than one victim of a single drunk-driving incident. But the decision caused such a hostile reaction from the actual state government that the court overruled itself (Spiegelman, 1993). Alaska also emerges to be the only state to have developed a really independent test in the consecutive sentencing situation.

while violation of more than one statute is supposed, the court will appraise the differences between the statutes, and if they are important or considerable in terms of the social interests involved, it will sustain multiple sentences. Although this test is significantly different from Blockburger, it still does not determine the multiple violations--single statute problem. The greater number of states tries to apply Blockburger or the clear-legislative-intent test, in replication of the Supreme Court.

Seven states ( Colorado, Delaware, Florida, Michigan, North Carolina, Pennsylvania, and Washington) have specifically incorporated into their constitutions the federal clear-legislative-intent test of Missouri v. Hunter. Four others ( Oklahoma, Rhode Island, Wisconsin, and Wyoming) use Blockburger without discussing the clear-intent test and without giving any perceptible benefit to the defendants. Conclusion There is so much mystification in the consecutive sentencing aspects of double jeopardy law that one would think the state courts would basically go off on their own and develop independent doctrines.

This has not happened. Only Alaska has tried, and the other states seem content with tangling through. On the other hand, there is substantial disenchantment with the dual independence doctrine (four states rejecting, six adopting) and with collateral estoppel (six states opting for Brennan's approach instead). These facets of federal double jeopardy law have been affected by the New Federalism. Double jeopardy is not an area of the law with manifest cutbacks by the Burger Court; thus, it cannot be accomplished that the transition from Warren to Burger was considerable in causing state court rejectionism.

Conversely, there has been the typical split between Brennan, Marshall, Stevens, and the rest of the Supreme Court, and this has undoubtedly influenced the states, especially respecting the collateral estoppel-same transaction debate. Reference: Baumel, Judith Tydor. Double Jeopardy: Gender and the Holocaust. London: Vallentine Mitchell, 1998. Brown v. Ohio, 432 U. S. 161 ( 1977) Brown, Jean E. , Elaine C. Stephens, and Janet E. Rubin, comps. Images from the Holocaust: a Literature Anthology. Lincolnwood: National Textbook, 1997. De Silva, Carla, ed.

In Memory's Kitchen: a Legacy from the Women of Terezin. Trans. by Bianca Steiner Browna and David Stern. Northvale: Jason Aronson, 1996. Gurewitsch, Brana, ed. Mothers, Sisters, Resisters. Tuscaloosa: University of Alabama Press, 1998. Jones v. Commonwealth, 756 S. W. 2d 462 ( Ky. 1988) Lubell, Martha and Barbara Attic, dirs. Daring to Resist: Three Women Face the Holocaust. Women Make Movies, 2000. Ofer, Dalia and Lenore J. Weitzman, eds. Women in the Holocaust. New Haven: Yale University Press, 1998. Ohio v. Johnson, 467 U. S. 493 ( 1984).

Rittner, Carol and John K. Roth, eds. Different Voices: Women and the Holocaust. New York: Paragon, 1993. Schwarberg, Gunther, ed. In the Ghetto of Warsaw: Heinrich Jost's Photographs. Gottingen: Gerhard Steidl Druckerei und Verlag, 2001. Spiegelman, Art. Maus: A Survivor’s Tale: My Father Bleeds History/ And Here My Troubles Began. Parts I and II. New York: Pantheori, 1993. State v. Steele, 387 So. 2d 1175 ( La. 1980) The New York Times, April 5, 1993, A 10. The New York Times, March 1, 1993, A 15. Whalen v. United States, 445 U. S. 684 ( 1980).