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CRIMINAL PROCEDURE. Class Fourteen. Today’s Topics. Overview: “Protections” Impact of Acquittal D’s Appeal Second Trial of Convicted D “Same Offense” D Responsible. Today’s Topics. Collateral Estoppel Dual Sovereigns Aborted Proceedings Vindictiveness. Double Jeopardy.

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CRIMINAL PROCEDURE

Class Fourteen


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Today’s Topics

  • Overview: “Protections”

  • Impact of Acquittal

  • D’s Appeal

  • Second Trial of Convicted D

    • “Same Offense”

    • D Responsible


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Today’s Topics

  • Collateral Estoppel

  • Dual Sovereigns

  • Aborted Proceedings

  • Vindictiveness


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Double Jeopardy

Chapter Twelve


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Constitutional Provision

  • Fifth Amendment

    • [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb

  • Applicable to state prosecutions [Incorporation Doctrine] in 1969


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Common Fact Patterns

  • Second prosecution after acquittal

  • Second prosecution after conviction

  • Multiple punishments


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Acquittal Consequences for Prosecution

  • Second prosecution barred -- even if acquittal was a mistake

  • No appeal from acquittal -- even if rulings supporting acquittal were incorrect

  • No new trial from jury verdict of acquittal


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Determining if Court Action = Acquittal

  • United States v. Scott

    • Final determination of guilt/innocence necessary

    • Contrast with mistrial

    • Contrast with dismissal


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Determining if Court Action = Acquittal

  • Sanabria v. United States

    • Trial judge believed he was construing indictment and ruling on merits

  • United States v. Martin Lemon

    • If trial judge enters judgment of acquittal before jury reaches verdict, that determination is final


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Defendant’s Appeal

  • Issue: What is the double jeopardy effect of a reversal?

  • Concept: Results vary depending on the ground on which reversal is based [sufficiency vs. trial error]


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Reversal: Insufficient Evidence

  • Issue: Does it make a difference whether it is reviewing court or trial court/jury that determines evidence is insufficient

    • Remember: Finding of insufficient evidence at trial = verdict of acquittal

  • Burks v. United States

  • Jeopardy interest: Prohibits prosecution from another opportunity to supply or muster evidence it failed to provide in first case


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Sufficiency vs. Trial Error

  • Reversal for trial error does not equate to decision that gov’t failed to prove its case

    • Implies nothing about guilt/innocence

    • Is determination that D has been convicted through process that is defective

    • Therefore, no jeopardy bar for retrial


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Balancing Interests

  • D has strong interest in fair determination of guilt free from fundamental error

  • Society has valid interest in ensuring guilty are punished.


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Reversal: Trial Court Error

  • Considering “improper” evidence in gauging sufficiency

    • Issue: What impact when legally competent evidence is insufficient but trial judge erroneously allowed incompetent evidence to be introduced at trial [and the resulting combination was sufficient]

    • Lockhart v. Nelson

  • Defective charging instrument

    • Montana v. Hall


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Reversal: Trial Court Error

  • Weight v. Sufficiency

    • Tibbs v. Florida


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Second Trial of Convicted D

  • Concept: Following valid conviction, the same offense cannot be prosecuted again

  • Problem: Determining what is the same offense

    • Examples: lesser included offense [think: aggravated robbery with gun, non-weapon robbery]; closely related offenses [think: speeding and failure to use turn signal in same transaction]

  • Analytical Key: Blockburger Rule


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Blockburger Test

  • Asks whether each statutory provision contains an element the other does not


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Crime One

A

B

C

Crime Two

A

B

D

Blockburger


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Blockburger Examples

  • Brown v. Ohio

    • Joyriding as lesser included of auto theft

    • Second conviction violated double jeopardy

  • Grady v. Corbin

    • Now abandoned “same conduct” test

    • Constitutional detour


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Blockburger Examples

  • United States v. Dixon

    • Criminal contempt & possession drugs

  • Rutledge v. United States

    • Elements of conspiracy and “in concert” aspect of CCE [continuing criminal enterprise]


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Separate

Crime One

A B C

Crime Two

A B D

Same

Crime One

A B C

Crime Two

A B C

Lesser Included

Crime One

A B C

Crime Two

A B

Recap: Blockburger Application


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Remedy for Violations

  • Frequently, reversal and dismissal of results in second prosecution

  • “Reformation”

    • Morris v. Matthews [reduced to conviction for lesser included offense]

      • D burden: “reasonable probability would not have been convicted of non-jeopardy barred offense absent presence of jeopardy-barred offense”


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When D Responsible for Multiple Prosecutions

  • Concept: If D is responsible for multiple prosecutions, double jeopardy limitation not applicable

    • Jeffers v. United States [D opposed government attempt to consolidate]

      • Cf, Rutledge

    • Ohio v. Johnson [D chose over gov’t objection to split offenses]

      • Caution: As matter of state law, later trial might raise question of cumulative punishments



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Collateral Estoppel: Background

  • Multiple victims = multiple offenses

  • May be circumstances when even separate trials on distinct offenses are constitutionally barred --- when cases have ultimate fact in common

  • Constitutional basis: Due Process clause


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Accused defendants

1

2

3

4

Criminal conduct

Robbery

Car theft

Crime Victims

1

2

3

4

5

6

Total possible charges per defendant: 7

Ashe v. Swenson: The Facts


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Ashe Facts

  • Trial One [Victim X]

    • Gov’t evidence that D had been one of robbers was weak

    • Jury returns verdict of not guilty

    • Verdict recites: “not guilty due to insufficient evidence”

  • Trial Two [Victim Y]

    • Six weeks later


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Collateral Estoppel

  • Principle: when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit


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Determining “Ultimate Fact”

  • Consider

    • Pleadings

    • Evidence at trial

    • Charge [jury instruction]

    • Other relevant matter

  • Conclude whether a rational jury could have granted its verdict on an issue other than the fact on which D seeks to foreclose future litigation



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Constitutional Protection

  • When Double Jeopardy prohibits successive prosecutions, it does so only when those prosecutions are brought by the same sovereign

  • Dual Sovereign = possibility of dual prosecutions

    • Theory: each sovereign has been offended

  • Inherent in American Federalism


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Examples

  • Rodney King

  • Angleton prosecution in Houston


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Limitations

  • If one sovereign acting as “tool” of another --- sham, or cover

    • Bartkus v. Illinois

  • Current event update: Supreme Court is considering issue this term


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Test Your Knowledge

  • Is a state a separate sovereign from the federal government?

  • Is city separate sovereign from state in which it is located?

  • Are individual states in the Union dual sovereigns vis a vis one another?

  • Are Indian nations separate sovereign [recent Supreme Court decision]?



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Scenarios

  • Trial ends prematurely

  • Mistrial declared

  • Examples:

    • Prosecutor improperly comments on D’s failure to testify and D seeks mistrial

    • Prosecution’s key witness fails to appear in response to subpoena

    • Jury is deadlocked and cannot reach verdict


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Key Terms

  • “Attachment”

  • “Manifest Necessity”


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Attachment

  • Jury trial

    • When jury empaneled and sworn

  • Bench trial [to the court]

    • When court begins to hear evidence


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Mistrial over D’s Objection

  • Critical concept: Manifest necessity

  • General rule: If there is manifest necessary, then there is exception to double jeopardy protections

  • Test: Manifest necessity exists when end of public justice are not served if there is no retrial


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Mistrial on D’s Motion

  • Generally, no double jeopardy bar

  • Exception: conduct by prosecutor intended to “goad” D into moving for mistrial


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Vindictiveness

  • Issue: What, if any, limitations are imposed on courts and prosecutors when a case is retried.

  • Example: More time added to second sentence following successful appeal.

    • Query: Is D being punished for exercising her right to appeal.


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Vindictiveness

  • Courts

    • North Carolina v. Pearce

    • Presumption of vindictiveness; can be overcome

  • Prosecutors

    • Presumption


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