Academic journal article The Yale Law Journal

Double Jeopardy Law Made Simple

Academic journal article The Yale Law Journal

Double Jeopardy Law Made Simple

Article excerpt

"[N]or shall any person be subject for the same offence to be twice

put in jeopardy of life or limb ...."(1)

Modern Supreme Court case law is full of double jeopardy double talk. Consider first the poetic phrase "life or limb." It seems sensible enough to read these words as a grim and graphic metaphor for criminal sanctions--and such an approach runs deep in American case law, to say nothing of English literature. This reading also makes the most sense of the precise location of the Fifth Amendment Double Jeopardy Clause, wedged as it is between two other provisions--the Grand Jury and Self-Incrimination Clauses--that apply only to criminal offenses. But can "life or limb" be stretched to encompass some civil suits involving only money? Today's Supreme Court seems to think so,(2) but how can this be squared with the text and structure of the Fifth Amendment? The Fifth Amendment Due Process Clause clearly applies to civil cases, but isn't its "life, liberty, or property" language obviously contradistinguished from the more narrow "life or limb" language of the Fifth Amendment Double Jeopardy Clause?

Consider next a far more egregious example of modern double jeopardy double talk. The Double Jeopardy Clause speaks of the "same" offense, and yet the Court casually applies the Clause to offenses that are not the same but obviously different. Premeditated murder is not the same as attempted murder or manslaughter; armed robbery is not the same as robbery; and yet under the so-called Blockburger test, the Court generally treats a greater offense as the same as each of its logically lesser-included offenses.(3) But on rare occasions, the Court rejects this test and reminds us that "[q]uite obviously the [greater] offense is not, in any common-sense or literal meaning of the term, the `same' offense as one of [its lesser-included] offenses."(4) How can we make sense of all this?

Finally, consider the question of precisely when "jeopardy" attaches. The modern Court claims that once the jury is sworn, a defendant is in "jeopardy."(5) Thus, defendant A cannot be tried a second time if, say, her first jury is dismissed because of gross prosecutorial misconduct. But if defendant B's first jury is dismissed for some other reason--because it cannot reach a unanimous verdict or because some jurors fall ill during trial--then B can indeed be tried again.(6) Why, on the Court's premises, doesn't such a retrial likewise place a person twice in jeopardy--and for the identical offense--in obvious violation of the bright-line rule of the Clause? And if a person is simply not "in jeopardy" until his jury is sworn, does this mean that if defendant C has won an acquittal in a fair and suitably error-free trial, C may nonetheless be reindicted for the same offense and held in pretrial detention until a second jury is sworn? If not--if jeopardy really attaches upon C's second indictment itself--does this mean that when a good faith prosecutor dismisses defendant D's first indictment pretrial, then the government is forever barred from bringing a new indictment on the same offense against D (based, say, on new evidence)?

Modern Supreme Court case law is also full of double jeopardy double takes. For example, in the 1975 Jenkins case,(7) the Court, per Justice Rehnquist, promulgated a double jeopardy test for identifying which erroneous trial court dismissals could be appealed by the government, reversed on appeal, and remanded for proper retrial.(8) But in the 1978 Scott case,(9) the Court, per Justice Rehnquist, explicitly overruled the 1975 Jenkins case and promulgated a new test.(10) (As we shall see, this new test is also flawed(11)--but never mind that for now.) Another example: In the 1990 Corbin case,(12) the Court, by a five-to-four vote, laid down a general test for identifying which formally different offenses should be treated as the "same" for double jeopardy purposes.(13) But in the 1993 Dixon case,(14) the Court, by a five-to-four vote, explicitly overruled the 1990 Corbin case. …

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