"Not Again! Double Jeopardy Protections and Limitations"

By: Dana M. Grimes, Esq.

Published: January 2012 "Trial Bar News"

Double jeopardy law is as multifaceted as it is old.  The double jeopardy principle existed in the days of the Greeks and Romans and was well-established for several hundred years in English common law before the birth of this nation.

The Fifth Amendment to the United States Constitution, stating that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb," is fundamental to American jurisprudence.  Because of the broad language of the Fifth Amendment, it is understandable that the premise behind the 1999 thriller "Double Jeopardy" starring Tommy Lee Jones and Ashley Judd was as follows: "A woman framed for her husband's murder suspects he is still alive; as she has already been convicted and served time in prison for the crime, she can't be re-prosecuted if she finds and kills him when she gets out."

Unfortunately, the premise for the movie is flawed, as the rule against double jeopardy is not as simple as it sounds.  In fact, it is not even one rule, but rather many rules, interpreted differently by state and federal courts.  Certainly this article is not intended to disparage any project in which Tommy Lee Jones is associated, but rather to examine the rules against double jeopardy which are riddled with exceptions.  It has been said that "a general rule shields a convicted man from retrial for the same offense.  But the state may retry a defendant whose conviction was reversed on appeal.  Even if the defendant was entitled to a directed verdict of acquittal, he is said to have 'waived' his double jeopardy right by appealing.  Similarly, a rule prohibits retrial when the first trial was prematurely terminated.  But if the trial is curtailed because the judge coerced a guilty plea, the judge's action is labeled 'reversible error' rather than 'premature termination.'  These fictions and rationalizations are the characteristic signs of doctrinal senility."  See, Twice in Jeopardy, 75 Yale L.J. 262, 263-264, citations omitted.

Double Jeopardy as Interpreted by the Supreme Court

The Constitutional protections against double jeopardy include prohibitions against:

(1)  A second prosecution for the same offense after an acquittal.  See, Illinois v. Vitale (1980) 447 U.S. 410, 415.  Re-prosecution after acquittal is prohibited because guilt should be established by proving the elements of a crime to the satisfaction of a single jury, not by capitalizing on the increased likelihood of conviction resulting from repeated prosecutions before many juries.

(2)  A second prosecution for the same offense after conviction.  See, U.S. v. Dixon (1993) 509 U.S. 688, 113.  This protection is meant to ensure that a prosecutor cannot search for an agreeable sentence by bringing successive prosecutions for the same offense before different judges.

(3)  With some exceptions, re-prosecution after a prior trial has been terminated without either a conviction or acquittal, as criminal trials should not be instruments for unnecessarily badgering accused individuals.

(4)  Multiple punishments for the same offense.  See, U.S. v. Halper (1989) 490 U.S. 435, 440.

(5)  Successive prosecutions for the same criminal act under two different statutes, unless each statute contains an element not contained in the other.  See, U.S. v. Dixon, supra, at 688, 696.

As noted above, in both the multiple punishment and multiple prosecution contexts, the Supreme Court has concluded that when the two offenses for which the defendant is punished or tried cannot survive the "same elements" test, the double jeopardy bar applies.  See, e.g., Brown v. Ohio (1977) 432 U.S. 161, 168-169; Blockburger v. United States (1932) 284 U.S. 299, 304 (multiple punishment); Gavieres v. United States (1911) 220 U.S. 338, 342 (successive prosecutions).  The same elements test, sometimes referred to as the "Blockburger" test, inquires whether each offense contains an element not contained in the other; if not, they are the "same offense" and double jeopardy bars additional punishment and successive prosecution.

In the 1990s, the Supreme Court began to change the Blockburger test to a more defendant-friendly and fact-based approach that would analyze the multiple offenses to determine whether they involved the same criminal conduct (see, e.g., Grady v. Corbin (1990) 495 U.S. 508.   But with U.S. v. Dixon, supra, 509 U.S. 688, the Court returned to the Blockburger standard.

The Reason the Feds Probably Won't Try You Again

This is the result of the "Petite Policy."  Contrary to popular misconception, double jeopardy does not prevent the federal government from, for instance, trying a defendant in federal court for the same conduct for which he has already pled guilty in state court.  The Petite Policy establishes guidelines for the exercise of discretion by the Department of Justice ("DOJ") in determining whether to bring a federal prosecution based on substantially the same acts involved in a prior state or federal proceeding.  See, Rinaldi v. United States (1977) 434 U.S. 22, 27; Petite v. United States (1960) 361 U.S. 529.  Congress has expressly provided that, as to certain offenses, a state judgement of conviction or acquittal on the merits shall be a bar to any subsequent federal prosecution for the same act or acts.  See, 18 U.S.C. §§ 659, 660, 1992, 2101, 2117; see also, 15 U.S.C. §§ 80a-36, 1282.

Nonetheless, as a result of the discretionary nature of the Petite Policy, if there is a possibility that a client can be charged both state and federally, to the extent that the defense attorney is able to influence the charging decision, it is usually a good thing for the federal case to be resolved first.  Most protective state statutes (detailed below) will prevent a re-prosecution by the California government.  All of the federal circuit courts that have considered the question have held that a criminal defendant cannot invoke the Petite Policy as a bar to federal prosecution.  See, e.g., United States v. Snell (9th Cir. 1979) 592 F.2d 1083.

If the state court prosecution cannot be delayed or prevented, and a federal prosecution seems possible or likely, the defense attorney should make sure the state record reflects that the state court judge had information before him or her regarding the conduct that the federal government finds offensive.  For example, in a drug sale case prosecuted by the San Diego district attorney's office, it was brought to our attention that our client was under investigation by federal law enforcement in Salt Lake City for similar conduct.  Fearing a federal indictment was imminent, we made sure that information was before the state court judge via the probation report.  The risk of it being considered as an aggravating factor in the state court sentence was worth it, because the client was subsequently indicted for that conduct in Salt Lake City.  To the credit of the Office of the United States Attorney in Salt Lake City, when we explained to them that the client had previously been sentenced in San Diego by a judge aware of the Utah connection, they decided under the Petite Policy to dismiss the indictment.

This type of preventative measure is not always going to prevent re-prosecution by the federal government.  If the DOJ believes the prior state prosecution left a substantially federal interest demonstrably unvindicated, they will retry the defendant in their own courts.  The Rodney King police brutality cases are a high profile example of this.  The California state case against the four Los Angeles Police Department officers charged resulted in three acquittals, and the jury failed to reach a verdict for the fourth defendant.  After the verdicts sparked the 1992 Los Angeles riots in which thousands of people were injured and 53 people died, the federal government tried all four men again in federal court for civil rights violation for the same conduct.  That trial resulted in two acquittals and two convictions.

California's Heightened Double Jeopardy Protections

The Fifth Amendment is applicable to the states through the Fourteenth Amendment, but the California Constitution also provides in Article I, Section 15 "[P]ersons may not twice be put in jeopardy for the same offense."

A former conviction or acquittal is a bar to another prosecution for any lesser included offense, and a bar to a prosecution for attempt to commit the offense of which the defendant was convicted or acquitted under Penal Code § 1032.  There are also several California statutes that supply additional protection against repeat prosecutions, some of which are beyond the protections in the United States Constitution, including but not limited to:

(1) Penal Code § 687 prohibits subjecting any person to a second prosecution for a public offense for which he or she has once been prosecuted and convicted or acquitted;

(2)  Penal Code § 656 provides a double jeopardy defense to any person tried in California for acts or omissions for which the person was convicted or acquitted under the laws of another state, government, or country;

(3)  Penal Code § 793 prohibits prosecuting a person for the same offense for which he or she was prosecuted for or acquitted of in another state or country; and

(4)  Penal Code § 794 provides that when an offense is within the jurisdiction of two counties within California, a conviction or acquittal in one county is a bar to a prosecution or indictment in another county.

A Plea of Once in Jeopardy or Former Judgment of Conviction or Acquittal

English development of the double jeopardy principle, under the influence of Coke and Blackstone, came gradually to mean that a defendant at trial could plead the former conviction or former acquittal as a special plea in bar to defeat the prosecution.  A plea of former judgement of conviction or acquittal, and a plea of once in jeopardy are codified at Penal Code § 1016 et seq.  If the facts supporting such a plea are neither contradicted nor amenable to differing interpretations, then the issues raised by the plea are issues of law for a judge to decide.  However, if different inferences can be drawn as to whether the defendant has suffered a former judgement of conviction or acquittal or has once been in jeopardy, then this creates an issue of fact for the jury.  People v. Vigghiany (1960) 181 Cal.App.2d 621, 631.  A plea of once in jeopardy must take the following form, "The defendant pleads that he has been once in jeopardy for the offense charged (specifying the time, place and court)."  Penal Code § 1017(4).

A plea of former conviction or acquittal must be substantially in the following form:  "The defendant pleads that he or she has already been convicted (or acquitted) of the offense charged, by the judgement of the court of        (naming it)       , rendered at            (naming the place)         , on the day of           ."  Penal Code § 1016(3).  The defenses of former conviction or acquittal and once in jeopardy may not be raised by a plea of not guilty.  They must be raised at arraignment or are waived.  People v. Belcher (1974) 11 Cal.3d 91, 95-96.

Jeopardy Might Attach to a So-Called "Civil" Case

The Supreme Court has construed double jeopardy protection as applicable to both felonies and misdemeanors.  Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), but not to civil cases.  Labeling a case civil or criminal is not dispositive; the test in determining whether a subsequent proceeding is criminal for double jeopardy purposes is to look to the subsequent possible sanction to see if it can be characterized as "punishment."  See, Hudson v. U.S. (1977) 522 U.S. 93.

Double jeopardy protections apply, for instance, to juvenile proceedings, even though they are labeled "civil."  On the other hand, the double jeopardy clause does not apply to civil forfeiture proceedings.  (Note, however, that the Supreme Court suggested in U.S. v. Ursery (1996) 518 U.S. 267 that a particularly onerous forfeiture could be so punitive that it would be considered equivalent to a criminal proceeding for purposes of a double jeopardy analysis.)

Double jeopardy does not apply to the administrative hearings run by the Department of Motor Vehicles for DUI offenses, despite the fact that the hearings result in lengthy license suspensions and even though a court conviction for a DUI results in a license suspension too.  As a result of these parallel proceedings which have the same sanction, most people convicted in California suffer two suspensions of their driver license for the same conduct.  The particularly problematic aspect of this from a due process perspective is that the court suspension can overlap and run concurrently with the DMV suspension completely or not at all, depending entirely on the timing of the hearings, which is completely arbitrary.  Finally, double jeopardy does not apply to proceedings which extend the commitment of a defendant found not guilty by reason of insanity.  See, People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 487.

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