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257.2 Double Jeopardy, Former Jeopardy

    257.2.1 Double Jeopardy, Former Jeopardy: Defense Theory Instructions
    257.2.2 Double Jeopardy, Former Jeopardy: Fundamental Nature of the Right
    257.2.3 Double Jeopardy, Former Jeopardy: Same Elements Test Applies
    257.2.4 Double Jeopardy, Former Jeopardy: Does Conviction Of Lesser Offense Constitute Implied Acquittal Of Greater Offense?
    257.2.5 Double Jeopardy, Former Jeopardy: Lesser Offense Distinguished From Penalty Enhancement
    257.2.6 Forfeiture: Double Jeopardy, Former Jeopardy Defense
    257.2.7 Double Jeopardy, Former Jeopardy: Prohibition Against Multiple Convictions
    257.2.8 Double Jeopardy, Former Jeopardy: "Clerical Error Leading To Acquittal"
    257.2.9 Double Jeopardy, Former Jeopardy: Whether Retrial Barred After Erroneous Excusal Of Deliberating Juror
    257.2.10  Impact Of Mistrial
    257.2.11 Double Jeopardy: Death Penalty – Inapplicable To Life Sentence Imposed As A Matter Of Law After Hung Jury

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RATIONALE: Double of  former jeopardy may be a jury issue and, hence, when appropriate, a defense theory instruction on this issue may be necessary.

POINTS AND AUTHORITIES: Double jeopardy is a fundamental right (see FORECITE National™ 257.2.2 [Double Jeopardy: Fundamental Nature Of The Right]) which may be an issue of fact upon which the jury should be instructed upon request; but the failure to enter this plea constitutes a waiver of the right to raise the defense. (See e.g., People v. Belcher (CA 1974) 11 C3d 91, 96 [113 CR 1]; State v. Pendergrast (ND 1983) 340 NW2d 454, 456.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See Capital Punishment Handbook [1.11.1a. Double Jeopardy: General Principles And Authorities].

See also A Manual On Jury Trial Procedures [1.3 A. Jury Impanelment–Double Jeopardy (Criminal): Jury Trial].

See also generally, FORECITE National™ 305.6.8 [Former Jeopardy].

    The defendant is not guilty of the crime charged against [him] [her] if any of the elements of the present charge require proof of conduct for which the defendant has already been prosecuted.

[Source: FORECITE National™.]

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PRACTICE NOTE: The United States Supreme Court has held that the right not to be twice placed in jeopardy is "fundamental" (Benton v. Maryland (1969) 395 US 784, 794-96 [89 SCt 2056; 23 LEd2d 707]), and that the primary purpose of the double jeopardy clause "is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial." (Robinson v. Neil (1973) 409 US 505, 509 [93 SCt 876; 35 LEd2d 29]; see also Sanabria v. United States (1978) 437 US 54, 69-72 [98 SCt 2170; 57 LEd2d 43].)

    In People v. Superior Court (Marks) (CA 1991) 1 C4th 56 [2 CR2d 389], the California Supreme Court reaffirmed the fundamental nature of the guarantee against double jeopardy. The opinion contains many good quotations regarding the importance of the double jeopardy clause and concludes that it "suffers no compromise; therein lies its strength and vitality." (Id. at 79.) The court also emphasized that no inquiry as to the guilt or innocence of the defendant should be made in applying such a constitutional principle. "'The doctrine that respect for the law cannot be inspired by withholding the protection of the law from those accused of crime is one which recognizes no exceptions. To be watchful for the constitutional and individual rights of the citizen against any encroachment thereon is one of the primary duties and obligations of the courts, and it is by unrelenting watchfulness and zeal in this regard that the conviction of the innocent will be averted.' [Citations.]" (Id. at 79; see also Meek v. State (FL 1990) 566 So2d 1318, 1321 [immunity, like double jeopardy, is a fundamental issue that may be raised post-trial]; Johnson v. State (FL 1984) 460 So2d 954, 958 [fundamental error in the nature of violation of defendant's substantive constitutional double jeopardy rights is not subject to harmless error statutes or to the contemporaneous objection rules, nor is waiver implied from failure of defense counsel to present the issue by pretrial motion to dismiss or failure to object at trial]; People v. McRobbie (NY 1995) 636 NYS2d 975, 977 [double jeopardy guarantee is fundamental to American system of justice and consequently applies to states through due process clause of 14th Amendment]; Konchar v. State (TX 1996) 938 SW2d 500, 502 ["Because of the fundamental nature of the double jeopardy clauses of the respective constitutions, jeopardy can be raised for the first time on appeal"].)

See Capital Punishment Handbook [1.11.1a. Double Jeopardy: General Principles And Authorities].

See also A Manual On Jury Trial Procedures [1.3 A. Jury Impanelment–Double Jeopardy (Criminal): Jury Trial].

See also generally, FORECITE National™ 305.6.8 [Former Jeopardy].

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PRACTICE NOTE: In U.S. v. Dixon (1993) 509 US 688, 704 [113 SCt 2849; 125 LEd2d 556], the Supreme Court abandoned the same conduct test of double jeopardy set forth in Grady v. Corbin (1990) 495 US 508 [110 SCt 2084; 109 LEd2d 548] in favor of the traditional same elements test. (See also State v. Gocken (WA 1995) 896 P2d 1267, 1272-73; State v. Kurzawa (WI 1994) 509 NW2d 712, 722.)

Parmenter, United States v. Dixon: The Supreme Court Returns to the Traditional Standard for Double Jeopardy Clause Analysis, 69 Notre Dame L.Rev. 575, 582 (1994).

Raith, Double Trouble or Double Jeopardy--"Same Conduct" (Grady) Test Overruled in Favor of Return to Single "Same Element" (Blockburger) Test, 33 Washburn L.J. 429, 447, (1994).

See Capital Punishment Handbook [1.11.1a. Double Jeopardy: General Principles And Authorities].

See also A Manual On Jury Trial Procedures [1.3 A. Jury Impanelment–Double Jeopardy (Criminal): Jury Trial].

See also generally, FORECITE National™ 305.6.8 [Former Jeopardy].

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    See FORECITE National™ 265.8.2 [Conviction Of Lesser Offense -- Impact On Greater Offense].

See Capital Punishment Handbook [1.11.1a. Double Jeopardy: General Principles And Authorities].

See also generally, FORECITE National™ 305.6.8 [Former Jeopardy].

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    257.2.5    Double Jeopardy, Former Jeopardy: Lesser Offense Distinguished From Penalty Enhancement

PRACTICE NOTE: Under double jeopardy principles, a conviction of the lesser degree of an offense is an implied acquittal of the greater degree. (People v. Bright (CA 1996) 12 C4th 652, 660-61 [49 CR2d 732]; see also FORECITE National™ 265.8.2 [Conviction Of Lesser Offense -- Impact On Greater Offense].)  However, in contrast to greater and lesser degrees of an offense, a penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances. A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged. (See People v. Bryant (CA 1992) 10 CA4th 1584, 1596-98 [13 CR2d 601]; see also People v. Wolcott (CA 1983) 34 C3d 92, 101 [192 CR 748].) Accordingly, a defendant's conviction of the underlying substantive offense does not, on double jeopardy grounds, bar further proceedings such as retrial on a penalty allegation. (Bright, 12 C4th at 661.)

    In Monge v. California (1998) 524 US 721, 734 [118 SCt 2246; 141 LEd2d 615] the United States Supreme Court affirmed the California Supreme Court holding that the double jeopardy clause does not preclude retrial on a prior conviction allegation in noncapital sentencing proceedings. In Bullington v. Missouri (1981) 451 US 430, 446 [101 SCt 1852; 68 LEd2d 270], it was held that the double jeopardy clause does apply in sentencing proceedings. However, Monge declared that this is a narrow exception which applies only in capital cases. In noncapital cases, the sentencing is not a continuation of the trial itself as it is in a capital case and, hence, double jeopardy doesn't apply. (But see FORECITE National™ 300.21.2 [Apprendi: Constitutional Rights Apply To Sentencing Decisions That Increase The Range Of Punishment].)

See Capital Punishment Handbook [1.11.1a. Double Jeopardy: General Principles And Authorities].

See also A Manual On Jury Trial Procedures [1.3 A. Jury Impanelment–Double Jeopardy (Criminal): Jury Trial].

See also generally, FORECITE National™ 305.6.8 [Former Jeopardy].

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PRACTICE NOTE: U.S. v. Ursery (1996) 518 US 267 [116 SCt 2135; 135 LEd2d 549] held that civil forfeitures do not constitute "punishment" for purposes of the double-jeopardy clause. This holding was based on the court's conclusion that civil proceedings (1) have not historically been regarded as punishment; (2) there was no requirement in the statutes at issue that the government demonstrate scienter in order to establish that the property is subject to forfeiture; (3) though both statutes may serve a deterrent purpose, this purpose may serve civil as well as criminal goals; and (4) the fact that both statutes are tied to criminal activity is insufficient in itself to render them punitive. (518 US at 291-92; see also People v. $4,413.00 (CA 1996) 47 CA4th 1631, 1639 [55 CR2d 831] [in the context of forfeiture, California's Double Jeopardy Clause isn't subject to broader interpretation than federal clause]; People v. Shanndoah (CA 1996) 49 CA4th 1187, 1192-93 [57 CR2d 232] [relying on Ursery, holding that civil forfeiture of drug money isn't punitive and double jeopardy doesn't bar criminal prosecution]; see also Hudson v. U.S. (1997) 522 US 93, 94 [118 SCt 488; 139 LEd2d 450] [overruling U.S. v. Halper (1989) 490 US 435 [109 SCt 1892; 104 LEd2d 487].)

See Capital Punishment Handbook [1.11.1a. Double Jeopardy: General Principles And Authorities].

See also A Manual On Jury Trial Procedures [1.3 A. Jury Impanelment–Double Jeopardy (Criminal): Jury Trial].

See also generally, FORECITE National™ 305.6.8 [Former Jeopardy].

See also generally, FORECITE National™ 305.6.7 [Forfeiture].

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PRACTICE NOTE: Where double jeopardy bars multiple punishment it also bars multiple convictions. (See Ball v. U.S. (1985) 470 US 856, 865 [105 SCt 1668; 84 LEd2d 740].)

See Capital Punishment Handbook [1.11.1a. Double Jeopardy: General Principles And Authorities].

See also A Manual On Jury Trial Procedures [1.3 A. Jury Impanelment–Double Jeopardy (Criminal): Jury Trial].

See also generally, FORECITE National™ 305.6.8 [Former Jeopardy].