Guest Essayist: Guest Essayist: Charles E. Rice, Professor Emeritus of Law at the University of Notre Dame

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.–  U.S. Constitution, Fifth Amendment.

What are the purpose and origin of that constitutional protection?   “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense…. The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, 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… as well as enhancing the possibility that even though innocent he may be found guilty.  In accordance with this philosophy… a verdict of acquittal is final, ending a defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a subsequent prosecution for the same offence.’ … Thus it is one of the elemental principles of our criminal law that the Government cannot secure a new trial by means of an appeal even though an acquittal may appear to be erroneous.” Green v. U.S., 355 U.S. 184, 188 (1959).  (citations omitted.)

The importance of the double jeopardy protection is obvious.  But its applications raise technical questions.  For example, as the Supreme Court of the United States ruled, “[I]t is not even essential that a verdict of guilt or innocence be returned for a defendant to have once been placed in jeopardy so as to bar a second trial on the same charge…. A defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again…. This prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict.  At the same time jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where ‘unforeseeable circumstances… arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict.’…. [A] defendant can be tried a second time for an offense when his prior conviction for that same offense had been set aside on appeal.”   Green v. U.S., 355 U.S. 184, 187-88 (1959) (citations omitted).

The United States Constitution created a system of dual sovereignties, federal and state.  The protections of the Bill of Rights, including the protection against double jeopardy, were originally intended to bind only the federal government, the government of the United States.  Barron v. Baltimore, 32 U.S. 243 (1833).  For protection of their liberties against infringement by state governments, the people relied on guarantees in their state constitutions.  Thus the Supreme Court, in Palko v. Conn., 302 U.S. 319 (1937), declined to apply the double jeopardy protection strictly against the states.  Three decades later, however, the Supreme Court reversed that restriction on account of what it described as the “fundamental” character of that protection: “Once it is decided that a particular Bill of Rights guarantee is ‘fundamental to the American scheme of justice,’ … the same constitutional standards apply against both the State and Federal Governments…. The fundamental nature of the guarantee against double jeopardy can hardly be doubted.  Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation’s independence….As with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries…. Today, every State incorporates some form of the prohibition in its constitution or common law.”  Benton v. MD, 395 U.S. 784, 795 (1969) (citations omitted).”

The protection against double jeopardy is limited by the federal character of our constitutional system.  “[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each…. [T]he double jeopardy… forbidden [by the Fifth Amendment] is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority.  Here the same act was an offense against the State of Washington, because a violation of its law, and also an offense against the United States under the National Prohibition Act. The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that State is not a conviction of the different offense against the United States and so is not double jeopardy.”  U.S. v. Lanza, 260 U.S. 377, 382 (1922) (citations omitted).

A criminal assault under state law may also be a separate civil rights violation under federal law if the prerequisites of racial or other elements are present.  When, however, two different units of government are subject to the same sovereign, the double jeopardy clause does bar separate prosecutions by them for the same offense.  Waller v. Florida, 397 U.S. 387 (1970) (trial by a municipal court bars a trial for the same offense by a state court.)  The dual sovereignty doctrine has also been applied to permit successive prosecutions by two states for the same conduct.  Heath v. Alabama, 474 U.S. 82 (1985) (where defendant crossed the state line in committing a kidnap murder, he could be prosecuted for murder in both states.)

The clause generally has no application in noncriminal proceedings.  Helvering v. Mitchell, 303 U.S. 391 (1938).  But the protection against double jeopardy can apply to the imposition of sanctions that are civil in form but that constitute “punishment” in their application.  Breed v. Jones, 421 U.S. 519 (1975) (juvenile court proceedings); U.S. v. Halper 490 U.S. 435 (1989) (imposition of a civil penalty under the False Claims Act triggers protection against double jeopardy if the penalty is very disproportionate to compensating the government for its loss and is obviously intended for retributive or deterrent purposes).  Because a main purpose of the double jeopardy clause is the protection against the burden of multiple trials, a defendant who raises and loses a double jeopardy claim during pretrial or trial may immediately appeal the ruling, an exception to the general rule prohibiting appeals from nonfinal orders.  Abney v. U.S., 431 US 651 (1977)

In summary, the double jeopardy protection is truly fundamental.  That basic character should not be obscured by the necessity of making technical distinctions in its application.  Those distinctions, based on procedural or federalist factors, attest instead to the necessity of preserving the fundamental character of that protection not merely in general but in all of its applications.

Charles E. Rice is Professor Emeritus at the University of Notre Dame law School. His areas of specialization are constitutional law and jurisprudence. He currently teaches “Law and Morality” at Notre Dame.

March 15, 2012 

Essay #19 


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