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Double Jeopardy

Second Prosecution After Acquittal

When the first trial ends in an acquittal, there can be no second prosecution for the same offense. In this way, acquittal and conviction provide the same double jeopardy bar. But the Court has expanded the role of the double jeopardy clause to protect acquittals even when the offenses are not the same offense. In Ashe v. Swenson, masked men robbed five poker players. When the prosecutor tried Ashe for robbing one of the players, the evidence that Ashe was one of the robbers was weak, and the jury found Ashe not guilty of that robbery. The prosecutor then tried Ashe for robbing another player. This time the eyewitnesses seemed more certain that one of the masked men was Ashe; the eyewitness who was least certain at the first trial was not called to testify. Ashe was convicted of this robbery.

The same offense rule is that different conduct gives rise to different offenses. Robbery of one victim is never the same offense as robbery of a second. Thus, Ashe could get no help from the same offense doctrine. If he had been convicted of robbing the first poker player, he could have been tried later for robbing the second one.

But the acquittal provided a broader ban against a second trial. The Court noted that the only issue in the first trial was whether Ashe was one of the masked men, which the first jury determined in Ashe's favor. The Court held that the state could not force Ashe to defend that issue again. To permit the state to bring a prosecution for a different victim would, in effect, permit the second jury to overrule the first. It would also encourage prosecutors to structure later cases to hide evidence that turned out to be favorable to the defendant in the first trial. Forcing a defendant repeatedly to defend the same basic issue, while the state's case gets better and better, can only increase the likelihood that innocent defendants will be convicted.

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal LawDouble Jeopardy - Mistrials, Multiple Punishment, Second Prosecution After Conviction, Second Prosecution After Acquittal, Appeals, Lower Courts