DOUBLE JEOPARDY & JURISDICTION

Welcome to the most complex and challenging area of criminal procedure. As Chief Justice Rehnquist has said: "the decisional law in the area of double jeopardy is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." Who would have thought that so many problems would accrue from a simple little phrase in the 5th Amendment which reads: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." The right to be free from double jeopardy was first made applicable to state proceedings in Benton v. Maryland 395 U.S. 784 (1969).

The term "jeopardy" refers to the "danger" of punishment which is ascribed to any individual brought to trial before a court of competent jurisdiction. Procedural matters prior to trial do not constitute jeopardy, and that's why it's said that jeopardy attaches, or may be asserted by the defendant, once a jury has been sworn in, or the first witness takes the stand, in any original prosecution resulting in any acquittal or conviction. Jeopardy also attaches to any plea of guilty (treated the same as conviction) even if later withdrawn. Jeopardy does not attach to any proceedings resulting in nolle prosequi, mistrial, hung jury, or termination for any other "legally sufficient" reason. 

In terms of criminal process, the plea of double jeopardy is a valid defense response to a felony arraignment, and like the prosecutor's assertion of nolle prosequi (no prosecution), the claim of prior jeopardy must be made before a jury is impaneled and sworn in on a second prosecution; i.e., prior to commencement of the second trial. If the claim of double jeopardy is made after the trial begins, the rule of manifest necessity applies, making it a matter of discretion for the court, and any subsequent dismissal of the case or discharge of the jury must be treated as an acquittal. 

The term "double jeopardy" refers to the "danger" of a second punishment whenever an individual is brought to trial again for the same crime (or a greater or lesser included crime).  This means that there cannot be a second prosecution for the same criminal act (both in fact and in law) upon which a first prosecution was based. The accused must be released and the case dismissed. The challenge is determining what constitutes the "same" crime for double jeopardy purposes. Some of the simpler examples include:

It gets complicated when you consider the process of appeal. Under no circumstances can a prosecutor ever appeal a defendant's acquittal, but the prosecutor may appeal other decisions such as a judge's ruling to set aside a jury's guilty verdict or some ruling in a suppression hearing. These would be treated as appropriate for appellate review of judicial error, but even if the prosecutor wins an appeal on these collateral matters, the state still could not relitigate the case because of the collateral estoppel doctrine. This is the idea that once an issue has been determined in favor of the defendant at one trial, it cannot be reused by the prosecution in hopes of getting a more favorable outcome at a second trial. It's commonly referred to as the prosecution having only "one fair shot" at finding a defendant guilty. It's purpose is to prevent the state from using a first trial as a dry run for a second prosecution.

In the case of suppressed evidence where the suppression is overturned on appeal, it may be possible to retry the case with the unsuppressed evidence but only if it appears to form the basis of a separate and distinct new crime. Most courts have rejected the same transaction and same conduct tests in favor of the same evidence test (the Blockburger Test). As long as the same evidence is not being used again to focus on the same statutory elements of the charged offense, a second trial may proceed, but it would depend upon the nature of the previously suppressed evidence (whether it supported an intent or actus reus element of a related crime that the defendant was or was not charged with originally). The test is whether the new evidence supports distinct statutory elements, not distinct new crimes.

When the defense files an appeal, it's usually because they fought hard to get a complete acquittal, but something stuck, like a guilty verdict on a lesser included offense that was part of multiple charges or counts on the jury ballot. If they win their appeal, the state can then reprosecute them, if they want to, but only for the lesser included offense set aside on appeal, and certainly not for any of the original, more serious charges. For example, a jury acquits a murderer on everything but a related harassment charge, and the defense wins on appeal in overturning the conviction for harassment; the prosecution can retry the case, but only for harassment, not the murders.

Nothing in double jeopardy law prohibits simultaneous prosecution for the same offense in the courts of the federal government, criminal courts of another state, or civil courts of the same state. The only thing strictly prohibited is allowing a convicted juvenile to grow up enough to retry them for the same case as an adult in criminal court. The idea that double jeopardy protection does not apply to the laws of different jurisdictions is called the Dual Sovereignty Doctrine. 

JURISDICTION

Jurisdiction refers to the powers and privileges of a court; ultimately, they are powers to render punishments. Just having a judge, a fancy courthouse, and being recognized by the state legislature as part of a numerical circuit system doesn't give a court its jurisdiction. There are distinct common law principles that determine a court's jurisdiction, and these may or may not be used in constructing a court organizational system. Nationality of origin and state citizenship usually do not matter when it comes to a court's jurisdiction. It's not the same as venue; that's just a word for the county in which the court resides.

The topic is being discussed here, along with double jeopardy, because if there's a successful challenge to the court's jurisdiction, any conviction by that court is invalid and must be thrown out. The right to object to jurisdiction is a right that can be exercised anytime before, during, and after trial. 

There are three (3) kinds of recognized jurisdictions in the American court system: (1) territorial; (2) over the person; and (3) over the subject matter.

TERRITORIAL

The general rule is that: No state can enforce its laws in another state. North Carolina cannot enforce its laws in South Carolina, for example. If someone commits a crime in North Carolina and becomes a fugitive from justice in South Carolina, the state of North Carolina cannot send people down to South Carolina to "pick them up", and North Carolina certainly can't send it's own judge down to conduct an out-of-state trial. This is one of the privileges of statehood. Now, in some cases, there are interstate compact agreements which exist, spelling out extra privileges that go beyond the idea of Extradition treaties. All 50 states cooperate with each other in terms of extradition, but there are a few foreign countries that do not cooperate with the U.S. Although the law strongly prefers trying cases where the crime was committed, sometimes it might be advantageous for a fugitive to surrender to local authorities and fight extradition, if the evidence rules and penalties are different in that state.

Another general rule is that: No state can enforce the laws of another state. This rule comes up most often in cases of Border Disputes. If someone lives in a border town with the state line running down main street, and they commit the crime of stalking young women all over town, what are you going to do? Count the number of stalkings on one side of town, the other side of town, and then prosecute in the side with the most stalkings? Or suppose Joe is standing on the North Carolina side of the Virginia border and shots his gun across the state line, killing Bob; which state gets to prosecute? Or suppose Joe is a drug smuggler with his own airplane, and he drops air parcels containing drugs across five different states; Do you prosecute in each state? To resolve these matters, most places agree to prosecute where the last act was completed. A person can challenge this, of course, but these are all issues associated with the concept of territorial jurisdiction.

OVER PERSON

The common law rule is that: No court can try a person unless that person is in the courtroom and known to the court. It's not always adhered to, as ex parte proceedings and other methods exist for denying someone access to the court. Judges go to great efforts in cases of disruptive behavior to bind and gag defendants just so they can stay in the courtroom and participate in their trial. In other cases, the defendant participates via a television set up outside their jail cell, or in a cage, if need be. 

Generally, courts don't care about how jurisdiction was obtained over the person. This is what contributes to the assembly line feature of our justice system. A person challenging this kind of jurisdiction would probably have to do so at the time of arrest, since seizure of the body might be construed as a waiver of the right to complain about jurisdiction. A proper arrest and jurisdiction over the person go hand-in-hand, but consent is also a factor.

SUBJECT MATTER

This is the easiest kind of jurisdiction to understand. It's often considered the jurisdiction component of court organization. The basic rule is that no criminal court shall engage in the business of civil law; e.g., no criminal court shall grant marriages, divorces, etc. This becomes a problem with criminal sentences involving alternative punishments, like community service, forced charitable work, and even plea bargains and various other judicial supervisions or mediations.

Courts of "limited jurisdiction" are restricted to hearing a limited number of cases, typically misdemeanors or gross misdemeanors. They are sometimes called superior courts in large cities. Courts of general jurisdiction are empowered to hear all types of cases. They are typically found in county courthouses as district or circuit courts. Both are examples of courts of original jurisdiction, commonly used to refer to trial jurisdiction as compared to appellate jurisdiction. This means they have the power to try cases that have never been tried in a court before.  Jurisdiction at the appellate level normally involves the privilege to pick and choose the cases you want to hear (Certiorari), but in some cases, the state legislature may specify that an appellate court must hear certain cases. These are called Appeals courts. 

MISCELLANEOUS ISSUES

Court delay occurs when there are abnormal time lapses in bringing the case to trial, sometimes years. It, and court congestion (crowded calendars) are reasons why innocent people may plead guilty. Delay is usually caused by frivolous pretrial motions, and congestion is usually caused by poor management. Other sources of the problem have to do with mail delivery, tracking down people who have moved, and prisoner transport. The increasing use of scientific evidence (30% of trials) also adds to equipment needs and lengthy testimony by experts. Logistics problems also abound in notorious cases involving the media, crowd control, and jury sequestration.

The Speedy Trial Act of 1974 (Amended 1979) calls for a 30 day time period from arrest to complaint and a 70 day time period from arraignment to trial.

Calendar systems fall into two categories: (1) individual, where the same judge sees a case all the way through the system, from preliminary hearing to trial; (2) master, where judges specialize, usually on a rotating basis, at prelims, arraigns, motions, bargaining, and trials.

INTERNET RESOURCES:
Darryl Wood's notes on Court Organization
Double Jeopardy Defenses
Findlaw's Annotations

PRINTED RESOURCES:
Hickey, T. (1998) Criminal Procedure. NY: McGraw-Hill.
Samaha, J. (1999) Criminal Procedure. Belmont, CA: Wadsworth.
Webb, G. (1981) Plain Language Law: Criminal Judicial Process. Atlanta: Prof. Impressions.

Last updated: 06/25/03
Lecture List for Constitutional Law
Instructor Home Page