Jeopardy Law: Can States Change Double Jeopardy Clause?

The Fifth Amendment to the U.S. Constitution provides that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. This is a relatively straightforward concept: the government cannot prosecute someone more than once for the same crime. However, the application of the double jeopardy clause is complex and often unclear. While the Fifth Amendment provides a broad protection against double jeopardy, states can have their own double jeopardy laws that supplement it. For example, North Carolina has specific laws regarding double jeopardy when an offense occurs in multiple states.

Double jeopardy and mistrials

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states that no person shall be subject to the same offence twice. However, there are many situations in which double jeopardy does not apply, and a person can be tried again. For example, a second trial after a mistrial does not violate the double jeopardy clause because a mistrial ends a trial without a final judgement, as per United States v. Perez.

In the case of State v. Schalow, a mistrial led to a double jeopardy violation. However, the circumstances of this case are not entirely clear. In another case, a defendant moved to dismiss a case on the grounds of double jeopardy after a mistrial was declared when the judge discharged the jury without either side requesting it. The Third District agreed with the defendant and granted the dismissal, noting that jeopardy attaches when a jury is picked, and the defendant has a right to have that jury determine their guilt or innocence.

A mistrial can occur when a judge dismisses a case or concludes a trial without deciding the facts in the defendant's favour, or when a jury cannot reach a verdict. If a defendant moves for a mistrial, there is no bar to retrial, except when the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, the Supreme Court held that only when the "governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial" may a defendant raise the bar of double jeopardy.

The "same offense" test, as set out in Blockburger v. United States, determines whether two offenses are the same under the Double Jeopardy Clause. If all elements of a lesser offense are used to prove a greater offense, the two crimes are the same for double jeopardy purposes, barring the second prosecution.

Dual sovereignty

The dual sovereignty doctrine, also known as the "separate sovereigns" doctrine, is based on the idea that civilian and military justice systems are entirely separate and distinct. This doctrine treats state and federal courts or US and foreign courts differently for double jeopardy purposes.

The dual sovereignty doctrine holds that a person can be prosecuted by both a state government and the US federal government for the same act without violating the Double Jeopardy Clause. This is because American law considers each state government to be distinct from the federal government, with its own laws, court systems, and sovereignty. As a result, these parallel prosecutions are considered different "offenses" under the Double Jeopardy Clause, and the decisions of one government on prosecution are not binding on the other.

The earliest case addressing this matter at the Supreme Court of the United States is Fox v. Ohio in 1847, where the petitioner, Malinda Fox, appealed a conviction of a state crime of passing a counterfeit silver dollar. In United States v. Lanza (1922), the Lanza Court stated, "We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory." This case established the principle that prosecution by two governments for the same conduct does not constitute double jeopardy.

However, in Puerto Rico v. Sanchez Valle (2016), the Supreme Court held that separate prosecutions by the United States and Puerto Rico for the same conduct violated the Double Jeopardy Clause because the two governments are not "separate sovereigns." The Court emphasized that the "original source" of Puerto Rico's authority to prosecute crimes was a federal statute, and therefore, both governments were exercising prosecutorial authority stemming from the same source. This case highlights that the determination of dual sovereignty depends on the source of authority defining the offense rather than the body carrying out the prosecution.

It is important to note that the Double Jeopardy Clause does not protect against all retrials or successive prosecutions. For example, a retrial after a mistrial or a conviction that has been set aside on appeal may not violate double jeopardy. Additionally, charges that were dropped or put on hold can be reinstated unless barred by a statute of limitations. The key question for double jeopardy analysis is whether each offense requires proof of an element that is not contained in the other.

The insanity defence

In the United States, double jeopardy is a procedural defence that prevents an accused person from being tried again on the same or similar charges following an acquittal or conviction. The double jeopardy clause does not protect a person from being prosecuted by multiple states for the same act, as each state government is considered distinct from the federal government.

The "insanity defence" is a legal argument that allows a defendant to be acquitted by reason of mental illness. The defence argues that the defendant's mental illness prevented them from understanding the nature of their actions or that they were unable to distinguish between right and wrong at the time of the crime. This defence can be used to argue for a verdict of "not guilty by reason of insanity".

In the 2012 case of Damien McElrath in Georgia, the defendant was charged with malice murder, felony murder, and aggravated assault after killing his mother. The jury returned a verdict of "not guilty by reason of insanity" on the malice murder charge but found him "guilty but mentally ill" on the other charges. The Supreme Court of Georgia vacated all verdicts and authorized a retrial. McElrath argued that the "not guilty by reason of insanity" verdict was an acquittal that prohibited a retrial on the malice murder charge under the double jeopardy clause. The Supreme Court of the United States agreed, ruling that "not guilty by reason of insanity" is an acquittal for double jeopardy purposes.

In another case, Geary Otis, the defendant was charged with malice murder and other offences arising out of the assault of one victim and the death of another. The defence revealed its intent to pursue an insanity defence after the State had presented its opening statements. The State objected due to a lack of prior notice, and the trial court declared a mistrial. Otis appealed, arguing that the trial court had erred in declaring a mistrial and denying his plea of double jeopardy. The Supreme Court of Georgia agreed with Otis, holding that the circumstances did not demand a mistrial order and that the trial court had erred in entering that order over the defendant's objection. The Court further ruled that double jeopardy prevented Otis from being tried again.

Multiple charges for the same crime

For example, if an incident violates both state and federal laws, prosecutors at both levels can file charges under the dual sovereignty doctrine. This means that a person can be prosecuted by both a state government and the United States federal government for the same act, as they are considered different "offenses" under the double jeopardy clause. Similarly, a person can be prosecuted by multiple states for the same act.

Additionally, multiple charges can arise from a single incident when overlapping criminal statutes or dual jurisdictions are involved. For instance, in the case of Jaxson Hayes, he was charged with 12 offenses, including domestic violence, resisting arrest, and battery against a police officer, all stemming from a single incident of alleged domestic violence.

The key question for determining if multiple charges constitute double jeopardy is whether each offense requires proof of an element that is not contained in the other. If they do, they are considered separate offenses, and double jeopardy does not apply. For example, in State v. Miller, the defendant was convicted of both attempted common-law robbery and attempted larceny arising from the same incident but with different victims, and each charge was supported by distinct facts.

Furthermore, a defendant who pleads guilty to a lesser offense as part of a plea bargain and then violates its terms may be prosecuted for the original charge. For instance, if a defendant refuses to testify for the state at the trial of an accomplice, they can be charged with the initial offense.

Reopening a case

Double jeopardy is a concept in criminal law that prevents an individual from being tried or punished twice for the same crime. The Fifth Amendment to the U.S. Constitution guarantees this right, stating that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb". However, the double jeopardy clause does not protect against prosecution by both state and federal governments, or by multiple states, for the same act. This is known as the "'dual sovereignty" or "separate sovereigns" doctrine.

Additionally, if a defendant pleads guilty to a lesser offence as part of a plea bargain and then violates the terms, they can be prosecuted for the original charge. This is known as a "breach of plea bargain" and was affirmed in the case of Ricketts v. Adamson, 483 U.S. 1 (1987). Similarly, if charges were dropped or put on hold, they can be reinstated in the future unless barred by a statute of limitations.

In some cases, double jeopardy may not apply due to the "'dual sovereigns" doctrine, which recognises the civilian and military justice systems as distinct from each other. This means that a person can be tried and punished separately under both systems for the same act without violating double jeopardy. Similarly, parolees may be subject to different rules of evidence and standards of proof, allowing a parole board to punish a parolee for actions they were acquitted of in court.

While the concept of double jeopardy is designed to protect individuals from repeated trials and convictions, there are situations where it may not apply. These exceptions are intricate and can vary across different states and countries, so it is important to consult with a legal professional for specific cases.

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