Appeal

A retrial is ordinarily permitted after reversal of a conviction, except where retrial itself is the harm (as would usually be true when reversal was based on a claim of immunity, double jeopardy, or denial of a speedy trial) or where reversal was for insufficient evidence. Double jeopardy principles do not forbid imposition of a stiffer sentence after reconviction, but to protect a defendant's freedom to appeal, the Supreme Court ruled in North Carolina v. Pearce, 395 U.S. 711, 725 (1969), that due process requires that "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial," and, indeed, that even an appearance of vindictiveness must be avoided. Consequently, in Pearce the Court held that a judge may impose a more severe sentence upon a defendant after a retrial only if the reasons for doing so are made part of the record and are based upon "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding" (p. 726).

The principle that Pearce announced has not been expansively applied. In Colten v. Kentucky, 407 U.S. 104 (1972), the Court held the principle inapplicable to sentences imposed after a defendant, convicted at trial, had exercised a statutory right to be tried de novo by a higher-level trial court. The Supreme Court stressed "that the court which conducted Colten's trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly" (pp. 116–117). Similarly, in Chaffin v. Stynchcombe, 412 U.S. 17, 35 (1973), the Court found little potential for vindictiveness, and hence no constitutional defect, when the jury at the retrial, not knowing what the sentence had been at the original trial, imposed a stiffer sentence. And in Alabama v. Smith, 490 U.S. 794, 801–02 (1989), the Court declined to apply the Pearce presumption of vindictiveness when a judge had imposed a longer sentence after trial than he had after an earlier guilty plea that was later vacated. The Court ruled that because the factors that counsel leniency after a guilty plea were no longer present and because a trial gives the judge a fuller understanding of the circumstances than does a plea colloquy, there was no basis to presume that a stiffer sentence was motivated by vindictiveness.