State Constitutions and Criminal Justice

By Barry Latzer | Go to book overview

7
Double Jeopardy

A great deal of confusion surrounds the interpretation of the federal double jeopardy clause, the language of which appears in nearly all state constitutions.1 This analysis will focus only on those double jeopardy aspects that have generated significant numbers of state constitutional law cases. These state cases were not inspired by any great diminution in double jeopardy rights by the Burger Court. There were, in fact, no major shifts in double jeopardy doctrine as a result of the transition from Warren to Burger. There has been, however, in this as in other aspects of constitutional criminal law, a split between Justices Brennan and Marshall and the more conservative justices. And, as in the other areas of law, there has been a definite Burger-Rehnquist "tilt" toward the prosecution position.

For example, one of the general rules of the double jeopardy clause is that there may be no successive prosecutions for the same offense. Exceptions have been recognized in situations involving aborted first trials (mistrials and dismissals) and convictions followed by successful appeal by the accused. In these situations, the value of protecting the defendant against vexatious second trials is pitted against the value of giving the state a fair opportunity to convict. The general thrust of the Burger-Rehnquist rulings has been to approve retrials unless there has been a not guilty verdict or its equivalent (e.g., a dismissal on the merits). So in a case where charges were dismissed for reasons unrelated to the guilt or innocence of the accused (viz., prejudicial pretrial delay), the Burger Court permitted prosecutorial appeal and retrial.2 This is consistent with that Court's emphasis on the truth-finding function of the criminal trial. That is, while

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