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 Chapter Twelve

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

Common Fact Patterns Second prosecution after acquittal Second prosecution after conviction Multiple punishments

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

Determining if Court Action = Acquittal United States v. Scott – Final determination of guilt/innocence necessary – Contrast with mistrial – Contrast with dismissal

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

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]

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

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

Balancing Interests D has strong interest in fair determination of guilt free from fundamental error Society has valid interest in ensuring guilty are punished.

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

Reversal: Trial Court Error Weight v. Sufficiency – Tibbs v. Florida

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

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

Blockburger Crime One A B C Crime Two A B D

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

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]

Recap: Blockburger Application 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

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”

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

Collateral Estoppel

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

Ashe v. Swenson: The Facts 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 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

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

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

Dual Sovereigns

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

Examples Rodney King Angleton prosecution in Houston

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

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]?

Aborted Proceedings

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

Key Terms “Attachment” “Manifest Necessity”

Attachment Jury trial – When jury empaneled and sworn Bench trial [to the court] – When court begins to hear evidence

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

Mistrial on D’s Motion Generally, no double jeopardy bar Exception: conduct by prosecutor intended to “goad” D into moving for mistrial

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.

Vindictiveness Courts – North Carolina v. Pearce – Presumption of vindictiveness; can be overcome Prosecutors – Presumption