The Double Jeopardy
Clause of the Fifth Amendment to the
United States Constitution provides: "[N]or
shall any person be subject for the same offence to be twice put in jeopardy of
life or limb..." The four essential protections included are
prohibitions against, for the same offense:
retrial after an
acquittal;
retrial after a
conviction;
retrial after certain
mistrials; and
multiple punishments
Jeopardy attaches in jury trial when the jury is empaneled
and sworn in, in a bench trial when the court begins to hear evidence after the
first witness is sworn in, or when a court accepts a defendant's plea
unconditionally. Jeopardy does not attach in a retrial of a conviction that was
reversed on appeal on procedural grounds (as opposed to evidentiary
insufficiency grounds), in a retrial for which "manifest necessity" has been shown following a mistrial,
and in the seating of another grand jury if the prior one refuses to return an
indictment
"Same offense"
In United States v.
Felix, the U.S. Supreme Court ruled: "a[n]...offense
and a conspiracy to commit that offense are not the same offense for double
jeopardy purposes."
Sometimes the same conduct may violate different statutes.
If all elements of a lesser offense are relied on to prove a greater offense,
the two crimes are the "same
offense" for double jeopardy purposes, and the doctrine will bar the
second prosecution. This ruling in Felix distinguished between the test in
Blockburger and the ruling in Grady v.
Corbin regarding the "same
conduct" vs "same
offense" test, which was later overruled and reverted to Blockburger
in United States v. Dixon. In Blockburger v. United States, the
Supreme Court held that "where the
same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses
or only one, is whether each provision requires proof of an additional fact which
the other does not". The test was applied in Brown v. Ohio, where the
defendant had first been convicted of operating an automobile without the
owner's consent, and later of stealing the same automobile. The Supreme Court
concluded that the same evidence was necessary to prove both offenses, and that
in effect there was only one offense. Therefore, it overturned the second
conviction.
In other cases, the same conduct may constitute multiple
offenses under the same statute, for instance where one robs many individuals
at the same time. There is no explicit bar to separate prosecutions for
different offenses arising under the same "criminal
transaction", but it is not permissible for the prosecution to
re-litigate facts already determined by a jury. In Ashe v. Swenson, the defendant was accused of robbing seven poker
players during a game. John Ashe was first tried for, and acquitted of, robbing
only one of the players; the defense did not contest that a robbery actually
took place. The state then tried the defendant for robbing the second player;
stronger identification evidence led to a conviction. The Supreme Court,
however, overturned the conviction. It was held that in the first trial, since
the defense had not presented any evidence that there was no robbery, the
jury's acquittal had to be based on the conclusion that the defendant's alibi
was valid. Since one jury had held that the defendant was not present at the
crime scene, the State could not re-litigate the issue.
"Twice put in jeopardy"
Retrial after
acquittal
Once acquitted, a defendant may not be retried for the same
offense: "A verdict of acquittal,
although not followed by any judgment, is a bar to a subsequent prosecution for
the same offense." This applies in all cases where a verdict of not
guilty is entered by the Court against a defendant. Be it an acquittal returned
by the finder of fact (jury during a trial by jury, the judge during a bench
trial), a direct acquittal by a judge on motion from the defense, or a ruling
that the evidence is insufficient for conviction.
Implied acquittals
Every charge has specific facts that must be proven beyond
reasonable doubt to secure a conviction. And it is not unusual for a prosecutor
to charge a person with "lesser included offenses". An oft-mentioned
combination is first- and second-degree murder, with second-degree murder being
the lesser offense. A person convicted on the lesser charge can never again be
tried on the greater charge. If the conviction on the lesser charge is
overturned, the greater charge does not then come back into play.
The Supreme Court ruled as such in Green v. United States,
establishing the doctrine of "implied
acquittal". Everett Green had been tried on charges of arson and first
and second degree murder in the U.S. District Court for the District of
Columbia. He was convicted on arson and the lesser offense of second degree
murder. The verdict was silent on the greater offense. His conviction was
overturned due to the appellate court deciding there wasn't enough evidence,
remanding for a new trial. At the second trial, he was tried again with arson,
first and second degree murder, convicted on the greater offense and sentenced
to death.
He appealed, claiming the second trial should not have
included the greater offense under the Double Jeopardy Clause. The D.C. Circuit
Court rejected the claim. The Supreme Court of the United States overruled,
stating that Green was acquitted of first degree murder and, under the Fifth
Amendment, could not be retried on that charge.
At Green's first trial, the jury was authorized to find him
guilty of either first degree murder (killing while perpetrating a felony) or,
alternatively, of second degree murder (killing with malice aforethought). The
jury found him guilty of second degree murder, but, on his appeal, that
conviction was reversed and the case remanded for a new trial. At this new
trial, Green was tried again, not for second degree murder, but for first
degree murder, even though the original jury had refused to find him guilty on
that charge and it was in no way involved in his appeal. For the reasons stated
hereafter, we conclude that this second trial for first degree murder placed
Green in jeopardy twice for the same offense in violation of the Constitution.
That the jury did not explicitly return an acquittal on
first degree murder in its verdict is immaterial:
In brief, we believe
this case can be treated no differently, for purposes of former jeopardy, than
if the jury had returned a verdict which expressly read: "We find the
defendant not guilty of murder in the first degree but guilty of murder in the
second degree."
This case did, in effect, overrule a proceeding per curiam
decision, that of Brantley v. Georgia.
In that case, the lesser charge was voluntary manslaughter and the greater
charge was murder. Brantley was convicted on the lesser charge, but was
convicted on the greater charge at retrial after the conviction was overturned.
He appealed; arguing the inclusion of the greater charge at retrial violated
the Double Jeopardy Clause. The Supreme Court rejected that argument: "It was not a case of twice in jeopardy
under any view of the Constitution of the United States."
The Supreme Court explicitly overruled Brantley in another,
near-identical case, Price v. Georgia:
While the Brantley
holding may have had some vitality at the time the Georgia courts rendered their
decisions in this case, it is no longer a viable authority and must now be
deemed to have been overruled by subsequent decisions of this Court.
The lesser and greater offenses in Price are identical to
Brantley, with both being convicted on the lesser offense, and retried on the
same charges as in the original trial after the conviction is overturned.
Unlike Brantley, Price was convicted again on the lesser offense of voluntary
manslaughter and given a similar sentence. Price appealed that conviction. The
State of Georgia contended that since Price was not convicted on the greater
offense at retrial, which was the case in Brantley, the second indictment
constituted "harmless error".
The Supreme Court rejected that idea:
The Double Jeopardy
Clause, as we have noted, is cast in terms of the risk or hazard of trial and
conviction, not of the ultimate legal consequences of the verdict. To be
charged and to be subjected to a second trial for first-degree murder is an
ordeal not to be viewed lightly. Further, and perhaps of more importance, we
cannot determine whether or not the murder charge against petitioner induced
the jury to find him guilty of the less serious offense of voluntary
manslaughter rather than to continue to debate his innocence.
Noting that the murder charge may have poisoned the jury
against Price, the Supreme Court vacated the voluntary manslaughter conviction
and remanded the case.
Non-final judgments
As double jeopardy applies only to charges that were the
subject of an earlier final judgment, there are many situations in which it
does not apply, despite the appearance of a retrial. For example, a second
trial held after a mistrial does not violate the double jeopardy clause because
a mistrial ends a trial prematurely without a judgment of guilty or not, as was
decided by the Supreme Court in United
States v. Perez. Cases involuntarily dismissed because of insufficient
evidence may constitute a final judgment for these purposes, though many state
and federal laws allow for substantially limited prosecutorial appeals from
these orders. Also, a retrial after a conviction that had been set aside upon a
motion for new trial, and that subsequently has been reversed on appeal or
vacated in a collateral proceeding (such as habeas corpus) would not violate
double jeopardy, for the judgment in the first trial had been invalidated. In
all of these cases, however, the previous trials do not entirely vanish.
Testimony from them may be used in later retrials, such as to impeach contradictory
testimony given at any subsequent proceeding.
Prosecutors may appeal when a trial judge sets aside a jury
verdict for conviction with a judgment notwithstanding verdict for the
defendant. A successful appeal by the prosecution would simply reinstate the
jury verdict and so would not place the defendant at risk of another trial.
Reversal for
procedural error
If a defendant appeals a conviction and is successful in
having it overturned, the defendant may be subject to retrial.
Insufficiency
Retrial is not possible if the verdict is overturned on the
grounds of evidentiary insufficiency, rather than on the grounds of procedural
faults. As noted above, if the trial court made a determination of evidentiary
insufficiency, the determination would constitute a final acquittal; in Burks v. United States, the Court held
that "it should make no difference
that the reviewing court, rather than the trial court, determined the evidence
to be insufficient."
Fraud
If the earlier trial is a fraud, double jeopardy will not
prohibit a new trial because the party acquitted has prevented themselves from
being placed into jeopardy to begin with. One such case is the trial of Harry
Aleman, who was tried and acquitted in 1977 in Cook County, Illinois for the
September 1972 death of William Logan. Nearly 20 years later, two persons under
Federal Witness Protection came forward to state that Aleman murdered Logan and
another individual, and had also bribed the trial judge to return an acquittal.
Following on the new evidence, the Cook County State's
Attorney in December 1993 filed new charges alleging Aleman killed William
Logan, an identical allegation for which Aleman had been previously acquitted.
He was convicted on that charge and sentenced to 100 to 300 years in prison. He
appealed that conviction and the indictment, challenging that the second
prosecution was barred under the Double Jeopardy Clause. The Seventh Circuit
disagreed, stating first that "jeopardy
denotes risk", citing Breed v.
Jones:
In the constitutional
sense, jeopardy describes the risk that is traditionally associated with criminal
prosecution.
And also citing Serfass:
Without risk of a
determination of guilt, jeopardy does not attach, and neither an appeal nor
further prosecution constitutes double jeopardy․ In particular, it has no
significance in this context unless jeopardy has once attached and an accused
has been subjected to the risk of conviction.
The Seventh Circuit declared that, in rejecting the Double
Jeopardy claim, even with the slight risk of conviction following the bribe,
Aleman still nullified any legitimate risk:
Aleman may be correct
that some risk of conviction still existed after Judge Wilson agreed to fix the
case, but it cannot be said that the risk was the sort "traditionally
associated" with an impartial criminal justice system.
Grand juries and
double jeopardy
The Double Jeopardy Clause of the Fifth Amendment does not
attach in a grand jury proceeding or bar a grand jury from returning an indictment
when a prior grand jury has refused to do so.
Retrial after
conviction
A person who is convicted of one set of charges cannot in
general be tried on additional charges related to the crime unless said
additional charges cover new facts against which the person in question has not
yet been acquitted or convicted. The test that determines whether this can
occur is the Blockburger test.
An example of this is the charges of "conspiring to commit murder" and "murder". Both charges typically have facts distinct
from each other. A person can be charged with "conspiring to commit murder" even if the murder never
actually takes place if all facts necessary to support the charge can be
demonstrated through evidence. Further, a person convicted or acquitted of
murder can, additionally, be tried on conspiracy as well if it has been
determined after the conviction or acquittal that a conspiracy did, in fact,
take place.
Retrial after
mistrial
Mistrials are generally not covered by the double jeopardy
clause. If a judge dismisses the case or concludes the trial without deciding
the facts in the defendant's favor (for example, by dismissing the case on
procedural grounds), the case is a mistrial and may normally be retried.
Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial
and order a retrial as was addressed in Perez. When the defendant moves for a
mistrial, there is no bar to retrial, even if the prosecutor or judge caused
the error that forms the basis of the motion. An exception exists, however,
where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, the Supreme Court held that "only where 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 to a second trial after having succeeded in aborting the
first on his own motion."
Multiple punishments
The defendant may not be punished twice for the same
offense. In certain circumstances, however, a sentence may be increased. It has
been held that sentences do not have the same "finality" as acquittals, and may therefore be reviewed
by the courts.
The prosecution may not seek capital punishment in the
retrial if the jury did not impose it in the original trial. The reason for
this exception is that before imposing the death penalty the jury has to make
several factual determinations and if the jury does not make these it is seen
as the equivalent of an acquittal of a more serious offense.
In Arizona v. Rumsey,
a judge had held a separate hearing after the jury trial to decide if the
sentence should be death or life imprisonment, in which he decided that the
circumstances of the case did not permit death to be imposed. On appeal, the judge's
ruling was found to be erroneous. However, even though the decision to impose
life instead of death was based on an erroneous interpretation of the law by
the judge, the conclusion of life imprisonment in the original case constituted
an acquittal of the death penalty and thus death could not be imposed upon a
subsequent trial. Even though the acquittal of the death penalty was erroneous
in that case, the acquittal must stand.
Double jeopardy also does not apply if the later charge is
civil rather than criminal in nature, which involves a different legal standard
(crimes must be proven beyond a reasonable doubt, whereas civil wrongs need
only be proven by preponderance of evidence or in some matters, clear and
convincing evidence). Acquittal in a criminal case does not prevent the
defendant from being the defendant in a civil suit relating to the same
incident (though res judicata operates within the civil court system). For
example, O. J. Simpson was acquitted of a double homicide in a California
criminal prosecution, but lost a civil wrongful death claim brought over the
same victims.
Defendants happening to be on parole from an earlier offense
at the time may also be the subject of a parole violation hearing, which is not
considered to be a criminal trial. Since parolees are usually subject to
restrictions not imposed on other citizens, evidence of actions that were not
deemed to be criminal by the court may be re-considered by the parole board.
This legal board could deem the same evidence to be proof of a parole
violation. Most states' parole boards have looser rules of evidence than is
found in the courts – for example, hearsay that had been disallowed in court
might be considered by a parole board. Finally, like civil trials parole
violation hearings are also subject to a lower standard of proof so it is
possible for a parolee to be punished by the parole board for criminal actions
that they were acquitted of in court.
In the American military, courts-martial are subject to the
same law of double jeopardy, since the Uniform Code of Military Justice has
incorporated all of the protections of the U.S. Constitution. The non-criminal
proceeding non-judicial punishment (or NJP) is considered to be akin to a civil
case and is subject to lower standards than a court-martial, which is the same
as a civilian court of law. NJP proceedings are commonly used to correct or
punish minor breaches of military discipline. If a NJP proceeding fails to
produce conclusive evidence, however, the commanding officer (or ranking
official presiding over the NJP) is not allowed to prepare the same charge against
the military member in question. In a court-martial, acquittal of the defendant
means he is protected permanently from having those charges reinstated.
One notable exception to double jeopardy rules for military
service members is if the service member was being tried for the same offense
in civilian court. If a civilian court acquits an active duty service member of
an offense, a court-martial can still be convened against the service member
for the same offense under the provisions of the UCMJ. This is based on the "dual sovereigns" doctrine
that holds that the civilian and military justice systems are completely
distinct from each other and therefore are treated the same way as the
distinction between state and federal courts or US and foreign courts would be
for double jeopardy purposes.
The most famous American court case invoking the claim of
double jeopardy is probably the second murder trial in 1876 of Jack McCall,
killer of Wild Bill Hickok. McCall was acquitted in his first trial, which
Federal authorities later ruled to be illegal because it took place in an
illegal town, Deadwood, and then located in South Dakota Indian Territory. At
the time, Federal law prohibited all except Native Americans from settling in
the Indian Territory. McCall was retried in Federal Indian Territorial court,
convicted, and hanged in 1877. He was the first person executed by Federal
authorities in the Dakota Territory.
Double jeopardy also does not apply if the defendant was
never tried from the start. Charges that were dropped or put on hold for any
reason can always be reinstated in the future—if not barred by some statute of
limitations.
Insanity defense
The "insanity
defense" allows a defendant to be acquitted by reason of mental
illness. In 2012 in the State of Georgia, Damien McElrath killed his mother and
was charged with several offenses under Georgia law: malice murder, felony
murder, and aggravated assault. On the malice murder charge, the jury returned
a verdict of "not guilty by reason
of insanity", but returned "guilty
but mentally ill" on the felony murder and aggravated assault charges.
The Supreme Court of Georgia vacated all verdicts as repugnant and authorized
retrial.
McElrath argued the "not
guilty by reason of insanity" verdict is an acquittal that prohibited
Georgia from retrying McElrath on the malice murder charge. The Supreme Court
of the United States agreed, ruling that "not
guilty by reason of insanity" is an acquittal:
For double jeopardy
purposes, a jury's determination that a defendant is not guilty by reason of
insanity is a conclusion that "criminal culpability had not been
established," just as much as any other form of acquittal. Burks v. United
States, 437 U. S. 1, 10 (1978). Such a verdict reflects "that the
Government ha[s] failed to come forward with sufficient proof of [a
defendant's] capacity to be responsible for criminal acts."
That all verdicts returned by the jury were ruled "repugnant" by the Supreme
Court of Georgia was immaterial. The Supreme Court reiterated its long-standing
precedent that an acquittal cannot be second-guessed by any Court, so the
Supreme Court of Georgia's ruling to vacate the acquittal was void. The Court
did not rule on the status of the "guilty
but mentally ill" charges, leaving that up to the Georgia courts to
ultimately decide.
Incorporation
Although the Fifth Amendment initially applied only to the
federal government, the U.S. Supreme Court has ruled that the double jeopardy
clause applies to the states as well through incorporation by the Fourteenth
Amendment.
Dual sovereignty
doctrine
The double jeopardy clause does not generally protect a
person from being prosecuted by both a state government and the United States
federal government for the same act, nor does it protect a person from being
prosecuted by multiple states for the same act. Because American law considers
each of the state governments to be distinct from the federal government of the
United States as a whole, with its own laws, court systems, and sovereignty,
these parallel prosecutions are considered to be different "offenses" under the double jeopardy clause, and the
decisions of one government on what to prosecute or not prosecute are not
considered to be binding upon the other. This is known as the "dual sovereignty" or "separate sovereigns"
doctrine.
The earliest case at the Supreme Court of the United States
to address the matter is Fox v. Ohio in 1847, in which the petitioner, Malinda
Fox, was appealing a conviction of a state crime of passing a counterfeit
silver dollar. The power to coin money is granted exclusively to Congress, and
it was argued that Congress's power precludes the power of any state from
prosecuting any crimes pertaining to the money, an argument the Supreme Court
rejected in upholding Fox's conviction.
A case that followed on Fox is United States v. Cruikshank, in which the Supreme Court stated that
the government of the United States is a separate sovereign from any state:
This does not,
however, necessarily imply that the two governments possess powers in common,
or bring them into conflict with each other. It is the natural consequence of a
citizenship which owes allegiance to two sovereignties, and claims protection
from both. The citizen cannot complain, because he has voluntarily submitted
himself to such a form of government. He owes allegiance to the two
departments, so to speak, and within their respective spheres must pay the
penalties which each exacts for disobedience to its laws. In return, he can
demand protection from each within its own jurisdiction.
In 1920 the United States was fresh into the Prohibition
Era. In one prosecution that occurred in Washington State, a defendant named
Lanza was charged under a Washington statute and simultaneously under a United
States statute, with the federal indictment stating several facts also stated
in the Washington indictment. The Supreme Court addressed the question of the
federal government and a state government having separate prosecutions on the
same facts in United States v. Lanza:
We have here two
sovereignties, deriving power from different sources, capable of dealing with
the same subject matter within the same territory. Each may, without
interference by the other, enact laws to secure prohibition, with the
limitation that no legislation can give validity to acts prohibited by the
amendment. Each government in determining what shall be an offense against its
peace and dignity is exercising its own sovereignty, not that of the other. It
follows that an act denounced as a crime by both national and state
sovereignties is an offense against the peace and dignity of both and may be
punished by each. The Fifth Amendment, like all the other guaranties in the
first eight amendments, applies only to proceedings by the federal government
(Barron v. City of Baltimore, 7 Pet. 243), and the double jeopardy therein
forbidden is a second prosecution under authority of the federal government
after a first trial for the same offense under the same authority. (The Barron
precedent was superseded 35 years later by the 14th Amendment)
This separation of sovereignty is seen with the separate
federal and state trials of convicted Oklahoma City bombing co-conspirator
Terry Nichols. Terry Nichols and Timothy McVeigh were tried and convicted in
federal court, with Nichols sentenced to life in prison with no possibility of
parole, and McVeigh sentenced to death and later executed. While the building
was owned by the federal government, serving as branch locations for multiple
federal agencies, the federal government had criminal jurisdiction only over 8
of the 168 confirmed deaths. With the express intent of seeing Nichols also
sentenced to death, while contemplating the same for McVeigh if his death
sentence was overturned on appeal, the State of Oklahoma filed charges against
Terry Nichols.
There may also be federal laws that call other facts into
question beyond the scope of any state law. A state may try a defendant for
murder, after which the federal government might try the same defendant for a
federal crime (perhaps a civil rights violation or a kidnapping) connected to
the same act. The officers of the Los Angeles Police Department who were
charged with assaulting Rodney King in 1991 were acquitted by a jury of the
Superior Courts of California, but some were later convicted and sentenced in
federal court for violating King's civil rights. Similar legal processes were
used for prosecuting racially motivated crimes in the Southern United States in
the 1960s during the time of the Civil Rights Movement, when those crimes had
not been actively prosecuted, or had resulted in acquittals by juries that were
thought to be racist or overly sympathetic with the accused in local courts.
Federal jurisdiction may apply because the defendant is a
member of the armed forces or the victim(s) are armed forces members or
dependents. U.S. Army Master Sergeant Timothy B. Hennis was acquitted on
retrial in North Carolina for the 1985 murders of Kathryn Eastburn (31 years
old) and her daughters, Kara (5 years old) and Erin (3 years old), stabbed to
death in their home near Fort Bragg, North Carolina. Two decades later, Hennis
was recalled to active duty, court-martialed by the Army for the crime,
convicted, and sentenced again to death Richard Dieter, executive director of
the Death Penalty Information Center, observed of this case, "Certainly, no one [in the US] has been
exonerated and then returned to death row for the same crime except Hennis."
Hennis challenged jurisdiction under the Double Jeopardy Clause on appeal to
the United States Army Court of Criminal Appeals, which rejected the challenge.
Furthermore, as ruled in Heath
v. Alabama, the "separate
sovereigns" rule allows two states to prosecute for the same criminal
act. For example, if a man stood in New York and shot and killed a man standing
over the border in Connecticut, both New York and Connecticut could charge the
shooter with murder.
In order for a state to have jurisdiction to prosecute a
criminal act, either the action directly resulting in consequences such as
death or injury must occur while the perpetrator is in the state and/or the
consequences must occur in the state. For example, if a man piloting an
airplane took off from New York, flew to Connecticut and while flying over
Connecticut committed a murder by dropping something from the aircraft, the
only two sovereigns able to prosecute would be Connecticut and the federal
government (due to the murder taking place from an aircraft) – New York would
lack jurisdiction since no criminal act would have been perpetrated from there.
But if the same man while still in New York remotely piloted a drone using the
cellular network and used that vehicle to commit the murder in Connecticut,
then three separate sovereigns could prosecute the murder (New York,
Connecticut and the federal government due to the use of the unmanned aircraft
as well as interstate telecommunications).
Only the states and tribal jurisdictions are recognized as
possessing a separate sovereignty, whereas territories of the United States,
the military and naval forces, and the capital city of Washington, D.C., are
exclusively under federal sovereignty. Acquittal in the court system of any of
these entities would therefore preclude a re-trial (or a court-martial) in any
court system under federal jurisdiction.
The dual sovereignty nature of the Double Jeopardy Clause
was reheard as part of Gamble v. United
States, decided in June 2019. The Supreme Court upheld the nature of dual
sovereignty between federal and state charges in a 7–2 decision.
Petite policy
Though the Supreme Court of the United States has recognized
the dual sovereignty doctrine as an exception to double jeopardy, the United
States will not exercise its dual sovereignty power on everyone who becomes
subject to it. As a self-imposed limitation on its dual sovereignty power, the
United States Department of Justice has a policy called the Petite policy,
named after Petite v. United States. The
formal name of the policy is "Dual
and Successive Prosecution Policy" and it "establishes guidelines for the exercise of discretion by
appropriate officers of the Department of Justice in determining whether to
bring a federal prosecution based on substantially the same act(s) or
transactions involved in a prior state or federal proceeding."
Under this policy, the Department of Justice presumes that
any prosecution at the state level for any fact applicable to any federal
charge vindicates any federal interest in those facts, even if the outcome is
an acquittal. As an example, a person who commits murder within the
jurisdiction of a state is subject to that state's murder statute and the
United States murder statute (18 U.S.C. § 1111). The federal government will
defer to the state to prosecute under their statute. Whatever the outcome of
the trial, acquittal or conviction, the Department of Justice will presume that
prosecution to vindicate any federal interest and will not initiate prosecution
under the United States Code.
However that presumption can be overcome. The policy
stipulates five criteria that may overcome that presumption (particularly for
an acquittal at the state level):
incompetence,
corruption, intimidation, or undue influence
court or jury
nullification in clear disregard of the evidence or the law
the unavailability of
significant evidence, either because it was not timely discovered or known by
the prosecution, or because it was kept from the trier of fact's consideration
because of an erroneous interpretation of the law
the failure in a prior
state prosecution to prove an element of a state offense that is not an element
of the contemplated federal offense
the exclusion of
charges in a prior federal prosecution out of concern for fairness to other
defendants, or for significant resource considerations that favored separate
federal prosecutions
The presumption may be overcome even when a conviction was
achieved in the prior prosecution in the following circumstances:
If the prior sentence
was manifestly inadequate in light of the federal interest involved and a
substantially enhanced sentence—including forfeiture and restitution as well as
imprisonment and fines—is available through the contemplated federal
prosecution, or
If the choice of
charges, or the determination of guilt, or the severity of sentence in the
prior prosecution was affected by the sorts of factors listed in the previous
list. An example might be a case in which the charges in the initial
prosecution trivialized the seriousness of the contemplated federal offense,
for example, a state prosecution for assault and battery in a case involving
the murder of a federal official.
The presumption also may be overcome, irrespective of the
result in a prior state prosecution, in those rare cases where the following
three conditions are met:
The alleged violation
involves a compelling federal interest, particularly one implicating an
enduring national priority.
The alleged violation
involves egregious conduct, including that which threatens or causes loss of
life, severe economic or physical harm, or the impairment of the functioning of
an agency of the federal government or the due administration of justice, and
The result in the
prior prosecution was manifestly inadequate in light of the federal interest
involved.
The existence of any of these criteria is to be determined
by an Assistant Attorney General of the United States. If a prosecution is
determined to have proceeded without authorization, the federal government may
and has requested the Court vacate an indictment. Such a move is in line with
the Courts vacating indictments wherein prosecutions were discovered to have
violated Department of Justice policy. Indictments have also been vacated when
the federal government first represents to the Court the prosecution was
authorized but later determines that authorization to have been mistaken.
https://en.wikipedia.org/wiki/Double_Jeopardy_Clause
