There is another "twice in jeopardy" issue, one that may sound odd to the ear. Is a defendant placed twice in jeopardy if he is tried only once but convicted of two offenses that are the same offense? Courts have long assumed that it is double jeopardy to convict a defendant twice of the same offense whether the convictions occur in one trial or two. If the rule were otherwise, the prosecutor could often circumvent the double jeopardy clause by trying both offenses in a single trial (a procedure that would not have been available to prosecutors in the eighteenth century).
The linguistic oddness of finding that a single trial can be double jeopardy may explain why courts have developed the terminology "multiple punishment" to explain what the double jeopardy clause forbids in a single trial. As the U.S. Supreme Court has stated on numerous occasions, the clause offers three protections in addition to the "manifest necessity" principle—it "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense" (Brown v. Ohio).
Using this three-part description of double jeopardy protection, one way to understand the double jeopardy clause is that it constrains judges and prosecutors. If the prosecutor brings more than one charge for the same offense in a single trial, the judge can enter but one conviction. If the prosecutor follows a conviction or acquittal with another charge for the same offense, the judge is obligated to dismiss the second charge. The Supreme Court put the matter this way in Brown v. Ohio, one of its most important double jeopardy cases:
[T]he Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.
The multiple punishment issue sometimes arises when the legislature has ordered consecutive sentences for violations of more than one criminal statute. For example, a Missouri statute created an offense of "armed criminal action" to punish the use of a dangerous weapon to commit a felony. This statute stated that any sentence imposed under it "shall be in addition" to the punishment for the felony that was committed using the dangerous weapon. Is this explicit indication of legislative intent significant in deciding whether the consecutive sentences are multiple punishment? Yes, the Court held in Missouri v. Hunter. The presence of clear legislative intent to punish offenses consecutively means that consecutive sentences are not multiple punishments within the meaning of the double jeopardy clause regardless of how much the offense definitions overlap.
- Double Jeopardy - Second Prosecution After Conviction
- Double Jeopardy - Mistrials
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