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Double Jeopardy and Due Process Barry Siegal Journal of Criminal Law and Criminology Volume 59 | Issue 2 Article 10 1968 Double Jeopardy and Due Process Barry Siegal Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Barry Siegal, Double Jeopardy and Due Process, 59 J. Crim. L. Criminology & Police Sci. 247 (1968) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. DOUBLE JEOPARDY when such inspection will not interfere 2. The substance or text of the charge, with Department use. such as a complaint or indictment. D. Arrest reports, arrest records, supple- 3. The identity of the investigating and mentary reports and photographs will arresting unit and the length of the not be open for inspection to representatives investigation. of the press or other news media. 4. The circumstances immediately sur- E. From the time a person is arrested until the rounding an arrest, including the time proceeding has been terminated by trial or and place of arrest, resistance, pursuit, olherwise, the following types of information possession and use of weapons, and a will not be made available to the press or news description of items seized at the time media: of arrest. 1. Observations about an arrestee's charac- G. The officer in charge of an investigation ter or prior criminal record. or other incident involving the police will 2. Statements, admissions, confessions, or impose restrictions on access to the crime alibis attributable to an arrestee. scene, or the release or information by 3. Results of investigative procedures subordinates when he believes it necessary such as fingerprints, polygraph examina- for the success of the investigation. Mem- tions, ballistics tests, laboratory tests, bers of the Department will seek the co- or showups. operation of news media representatives 4. Statements concerning the identity, in such matters. credibility, or testimony of prospective H. Arrest records and photographs in the witnesses. Inquiry and Identification Section files 5. Statements concerning evidence or may be released only by order of the Super- argument in the case, whether or not intendent or his delegated representative. it is anticipated that such evidence or I. Members of the Department will take no argument will be used at trial. action to encourage or assist news media F. Members of the Department, subject to in photographing or filming a person being the limitations imposed in paragraph held or transported in police custody. li-E, may release the following infor- J. The provisions of this order are not in- mation to the press or news media: tended to restrict the release of infor- iY The arrestee's name, age, residence, mation which may be helpful in, effecting employment, marital status, and similar the arrest of a person who is a fugitive background information. from justice. DOUBLE JEOPARDY AND DUE PROCESS BARRY SIEGAL Assume that a defendant is tried and convicted jeopardy, were pleas available to defendants, of murder in the second degree, but on appeal his reflecting a policy of finality as to cases already conviction is reversed on the basis of a prosecution decided on their merits. In England the courts induced procedural error at trial. Can he be held that this policy required that a defendant retried for the same offense, consistent with his convicted of a felony could not request a writ of Fifth Amendment right against being twice put error and also ask for a new trail. In other words, in -jeopardy? According to a longstanding rule if the error was substantial enough the verdict the state has the power to retry a defendant under was reversed and the prosecution could not retry these circumstances. But has this always been the the defendant. Otherwise, the verdict stood. law, and what was the rationale in establishing it? I Mayers and Yarbrough, Bis Vexari: New Trials Under the common law autrefois acquit and and Successive Prosecutions, 74 H.uv. L. Rv. 1, 4 autrefois convict, or what we now know as former (1960). BARRY SIEGAL [Vol. 59 The framers of the United States Constitution Mr. Justice Holmes, more logically but still quickly realized the importance of the maxim: in the realm of legal fiction, considered the problem "no man is to be brought into jeopardy of his to be one of continuing jeopardy. That is, jeopardy life more than once for the same offense," 2 and may be thought of as continuing until the "final" incorporated it into their final draft.' They were settlement of any one prosecution. 9 This notion struck, on the other hand, by the harshness, has yet to be accepted by the Supreme Court both from the point of view of the state and the since its position has been, at least in federal cases, defense, of the rule forbidding a retrial after that once an accused has been acquitted the govern- reversal. 4 That is, the state is clearly prejudiced ment can not appeal, even though there has been if it is foreclosed from seeking a new trial where a substantial legal error at trial.10 conviction has been reversed because of a pro- The actual reason why double jeopardy does cedural error. The defendant may also be hurt not attach where the defendant appeals a prior where the appellate court is reluctant to overturn conviction because of an error at trial is that the a verdict, knowing if they do the defendant will policy behind the guarantee is not applicable go free. in that situation. There seems to be no valid The first time the Supreme Court considered reason for unconditionally releasing the defendant the question of whether the Constitution was simply because there was some error committed intended to accord with the English rule barring at the first trail, at least absent a showing that retrial was in United States v. Gilbert.5 There the retrial would amount to unreasonable harassment Court felt compelled to follow English precedent of the defendant." The purpose of the double since the Constitution gave no indication of a jeopardy clause is not one of providing absolute contrary intent. Most American courts have since immunity from reprosecution, but only unreason- rejected this construction of the Fifth Amend- able reprosecution. 2 ment, and in United States v. Ball,6 the Supreme Court overruled Gilbert, holding that when a How Many Trials? defendant has a conviction set aside he may be The courts have never determined whether the retried for the same offense. Fifth or Fourteenth Amendments are transgressed The Ball doctrine has received unanimous merely because a defendant is tried several times. approval throughout the country, though there is a In Palko v. Connecticut" the Supreme Court, difference of opinion as to the rationale supporting it. The most predominant theory seems to be conceivable to force a defendant to give up valuable rights expressly granted by the Constitution in order that the defendant, by successfully appealing his to enable him to correct a fatal error. Kepner v. United prior conviction, has "waived" the protection States, 195 U.S. 100 (1904) (dissenting opinion).) against being retried for the same offenseY This 9 Kepner v. United States, supra note 8. Holmes, therefore, felt that the accused was not twice placed idea has been rejected by some authorities since in jeopardy whether the error on trial was in favor of it connotes a voluntary act, whereas, it is per- the accused or the government. 10Kepner v. United States, 195 U.S. 100 (1904). fectly clear the defendant cannot exercise a free " Van Alstyne, supra note 9, at 625. Even assuming uncoerced choice in this situation.8 that a retrial after reversal because of prosecution's error is not unreasonable, a question remains as to 2BLACKSTONE, Coi.rs xTrEs 335. whether reprosecution after government appeal be- 'U.S. CONST. amend. V. Protection against double cause of defense error violates this standard. The Court jeopardy can also be found in 41 state constitutions. in Palko v. Connecticut, 302 U.S. 319 (1937), upheld See Kneir, Prosecutions Under State Law and Municipal such a practice, apparently acknowledging a deference Ordinances as Double Jeopardy, 16 CoRNELL L.Q. 201 to the state's determination of this question. A similar (1931).4 federal situation was held unconstitutional. See, Kep- Mayers and Yarbrough, supra note 1, at p. 4. ner v. United States, supra note 10. 525 Fed. Cas. 1287 (C.C.D. Mass. 1834). 12 United States v. Tateo, 377 U.S. 463 (1964). 6 163 U.S. 662 (1896). 13302 U.S. 319 (1937). The majority reasoned that 7 E.g. MILLER, CRnawm L LAW, 534 (1937). the state was not trying to wear down the defendant S Green v. United States, 355 U.S. 184 (1957). Cf. with a multitude of trials, thereby implying that in VanAlstyne, In Gideons Wake: Harslier Penalties And some situations it may be constitutionally impermissi- The "Successful" Criminal Appellant, 74 YALE L.J. ble to retry a defendant if to do so would be unreasona- 606, 627 (1965). The author insists that to say that a ble. This dicta does not seem to have been taken very successful criminal appellant must "waive" a former seriously by other federal courts, however. For example, jeopardy plea "is either to deny that the protection is in United States ex rel. Hentenyi v. Wilkens, 348 F.2d. absolute or maintain that one can be required to forfeit 844 (1965) the Second Circuit allowed the state to a constitutional right to absolute protection for the retry the defendant four times where the only reason privilege of appeal.
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