Double Jeopardy

Determining when jeopardy terminates is no less important, but somewhat more complicated. Once jeopardy has terminated, the government may not hail someone into court for additional proceedings on the same matter without raising double jeopardy questions. If jeopardy does not terminate at the conclusion of one proceeding, it is said to be continue, and further criminal proceedings are permitted. Jeopardy can terminate in four instances: after acquittal; after dismissal; after a mistrial; and on appeal after conviction.

A jury's verdict of acquittal terminates jeopardy, and it may not be overturned on appeal even if it is contrary to overwhelming proof of a defendant's guilt and derived from a trial that was rife with reversible error. This elemental maxim of double jeopardy JURISPRUDENCE entrusts the jury with the power to nullify criminal prosecutions that are tainted by egregious police, prosecutorial, or judicial misconduct.

A jury also may impliedly acquit a defendant. If a jury has been instructed by the judge on the elements of a particular crime and a LESSER INCLUDED OFFENSE, and the jury returns a guilty verdict as to the lesser offense but is silent as to the greater one, then reprosecution for the greater offense is barred by the Double Jeopardy Clause. For example, a jury that has been instructed as to the crimes of first- and second-degree murder may impliedly acquit the defendant of first-degree murder by returning only a guilty verdict as to murder in the second degree. A not-guilty verdict as to the greater offense is inferred from the silence.

A dismissal is granted by the trial court for errors and defects that operate as an absolute barrier to prosecution. It may be entered before a jury has been impaneled, during the trial, or after a conviction. But jeopardy must attach before a dismissal implicates double jeopardy protection.

Once jeopardy attaches, a dismissal granted by the court for insufficient evidence terminates it. Such a dismissal also bars further prosecution, with one exception: The prosecution may appeal a dismissal entered after the jury has returned a guilty verdict. If the appellate court reverses the dismissal, the guilty verdict may be reinstated without necessitating a second trial. The state may not appeal a dismissal granted for lack of evidence after a case has been submitted to a jury, but before a verdict has been reached.

Reprosecution is permitted, and jeopardy continues, when the court dismisses the case on a motion by the defendant for reasons other than sufficiency of the evidence. For example, a court may dismiss a case when the defendant's right to a SPEEDY TRIAL has been denied by prosecutorial pretrial delay. The U.S. Supreme Court has held that no double jeopardy issue is triggered when defendants obtain dismissal for reasons that are unrelated to their guilt or innocence (see United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 [1978]).

A mistrial is granted when it has become impracticable or impossible to finish a case. Courts typically declare a mistrial when jurors fail to reach a unanimous verdict. Like a dismissal, a mistrial that is declared at the defendant's behest will not terminate jeopardy or bar reprosecution. Nor will a mistrial preclude reprosecution when declared with the defendant's consent. Courts disagree as to whether a defendant's mere silence is tantamount to consent.

A different situation is presented when a mistrial is declared over the defendant's objection. Reprosecution is then allowed only if the mistrial resulted from "manifest necessity," a standard that is more rigorous than "reasonable necessity," and less exacting than "absolute necessity." A mistrial that could have been reasonably avoided terminates jeopardy, but jeopardy continues if a mistrial was unavoidable.

The manifest-necessity standard has been satisfied where mistrials have resulted from defective indictments, disqualified or deadlocked jurors, and procedural irregularities willfully occasioned by the defendant. Manifest necessity is never established for mistrials resulting from prosecutorial or judicial manipulation. In determining manifest necessity, courts balance the defendant's interest in finality against society's interest in a fair and just legal system.

Every defendant has the right to appeal a conviction. If the conviction is reversed on appeal for insufficient evidence, the reversal is treated as an acquittal, and further prosecution is not permitted. However, the defendant may be reprosecuted when the reversal is not based on a lack of evidence. The grounds for such a reversal include defective search warrants, unlawful seizure of evidence, and other so-called technicalities. Retrials in these instances are justified by society's interest in punishing the guilty. A defendant's countervailing interests are subordinated when a jury's verdict is overturned for reasons that are unrelated to guilt or innocence.

The interests of accused individuals are also subordinated when courts permit prosecutors to seek a more severe sentence during the retrial of a defendant whose original conviction was reversed on appeal. Courts have suggested that defendants who appeal their convictions assume the risk that a harsher sentence will be imposed during reprosecution. However, in most circumstances, courts are not permitted to impose a death sentence on a defendant during a second trial when the jury recommended life in prison during the first. The recommendation of life imprisonment is construed as an acquittal on the issue of CAPITAL PUNISHMENT.