DOUBLE JEOPARDY
§ 14.01 Sources of the Right
§ 14.02 Multiple Trials
§ 14.03 - Commencement of the First Prosecution
§ 14.04 - Termination of the First Prosecution
§ 14.05 - The "Same Offense"
§ 14.06 Multiple Punishments and Convictions - In a
Single Trial
§ 14.07 - Civil "Punishment"
§ 14.08 - Increased Punishments
§ 14.09 Collateral Estoppel
§ 14.10 The Dual Sovereignty Doctrine
§ 14.11 Procedure
§ 14.01
Sources of the Right
The fifth amendment's double jeopardy clause{1} protects against two abuses: multiple prosecutions for the same offense, and multiple punishments for the same offense. There is no parallel state constitutional provision, but double jeopardy principles may be implied by the general due process guarantee of chapter I, article 10 and by the common law.{2} 13 V.S.A. § 6556 restates the double jeopardy prohibition against a second trial after acquittal, and the rules governing joinder and severance of offenses bar multiple prosecutions of related offenses in certain circumstances.{2.5}
§ 14.02
Multiple Trials
A claim of multiple prosecution must establish (1) that an earlier prosecution was commenced (i.e., that jeopardy attached), (2) that it ended (by acquittal, conviction, or some other action with an equivalent effect), and (3) that the subsequent prosecution was for the same offense.
§ 14.03
- Commencement of the First Prosecution
In a jury trial jeopardy attaches - the prosecution is deemed to have commenced - when the jury is empaneled and sworn,{3} after which the defendant has "a valued right to have his trial completed by [that] tribunal."{4} In a bench trial jeopardy attaches when the judge begins to hear evidence.{5}
For guilty pleas jeopardy "generally" attaches when the plea has been accepted, not when it is entered,{6} but the rule is not ironclad and even after a plea has been accepted attachment of jeopardy "is neither automatic nor irrevocable."{7}
The first proceeding must be a criminal prosecution.{8} Labels, however, are not controlling: a proceeding labeled civil may be considered a prosecution for double jeopardy purposes.{9} But proceedings like Vermont's civil DUI license suspension procedure, which the legislature intended to be civil and which do not result in traditionally criminal sanctions (such as imprisonment or probation), are not prosecutions for double jeopardy purposes even if they depend on proof of criminal conduct and have other traditionally criminal trappings.{10}
§ 14.04
- Termination of the First Prosecution
The double jeopardy clause bars reprosecution when the first prosecution has ended with either an acquittal or a conviction.{11} An acquittal or its equivalent (see below) is final for double jeopardy purposes when entered, whereas a conviction is not final until it has been affirmed on appeal or the time for taking an appeal has passed.{12}
A conviction after trial of a lesser included offense{13} implies an acquittal of the greater offense.{14} Similarly, when the defendant is convicted of a lesser offense under a plea agreement, the state is barred from prosecuting for the originally charged greater offense.{15}
An acquittal includes "the ruling of a judge, whatever its label," which "actually represents the resolution, correct or not, of some or all of the factual elements of the offense charged."{16} Thus, a trial judge's grant of judgment of acquittal{17} acts as an acquittal for double jeopardy purposes,{18} and an appellate court's reversal of a conviction on grounds of insufficiency of the evidence has the same effect.{19}
a. Mistrials
Judicial action that stops the trial short of a final verdict (e.g., declaring a mistrial) sometimes has the same effect as an acquittal and sometimes does not.
When the judge declares a mistrial because of "manifest necessity,"{20} the defendant can be retried. Mistrials declared because of a hung jury are clear cases of manifest necessity.{21}
In In re Dunkerley{22} the Vermont Supreme Court held that the defendant's emergency hospitalization in the middle of a trial created a manifest necessity for a mistrial, and that a new trial was therefore not barred by double jeopardy. The ruling was overturned in federal court, on the ground that trial could have proceeded in the defendant's absence, or after a continuance.{23} In State v. Corey{24} the court held that a sheriff's misconduct during jury deliberations created manifest necessity for a mistrial, even though the jury was permitted to continue its deliberations and reached a verdict of acquittal. That ruling was also overturned in federal court, on the ground that no manifest necessity required a mistrial after the jury had come back with its verdict.{25}
Mistrials declared on defense motion or with the defendant's consent also do not bar retrial,{26} except in those situations where the prosecutor acts intentionally to "provoke the defendant into moving for a mistrial."{27} Merely negligent prosecutorial conduct does not meet this standard.{28}
b. Appeals
A conviction is not final for double jeopardy purposes until it has been affirmed on appeal. When the defendant appeals and the conviction is overturned (for reasons other than insufficiency of evidence) double jeopardy does not bar a retrial.{29} Until the appellate court acts, the defendant can properly claim a privilege against self-incrimination based on the possibility of a second trial.{30}
Because an acquittal (or its equivalent) is effective immediately, the double jeopardy clause bars prosecution appeals after acquittal "not only when [the appeal] might result in a second trial but also when reversal might result in further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged."{31}
§ 14.05
- The "Same Offense"
The second proceeding must be a criminal prosecution for the same offense.{32} In part the scope of the first prosecution is set by the pleadings. When the information unambiguously charges only crime A, the defendant can later be prosecuted for crime B, notwithstanding that crime B was alleged in the affidavit of probable cause in the first prosecution.{33} Incidental proof of crime B in a prosecution for crime A (e.g., to show the defendant's motive or intent under V.R.E. 404(b)) is also not a prosecution for crime B.{34} Similarly, use of crime B to enhance the defendant's sentence for crime A does not bar a later prosecution for crime B.{35}
The United States Supreme Court has been sharply divided over the meaning of "same offense" in multiple prosecution cases.{36} In Grady v. Corbin{37} the United States Supreme Court held that double jeopardy bars a subsequent prosecution when the state, "to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Grady rejected a claim that two crimes could not be the "same," barring multiple prosecutions, unless one was a "lesser included offense" of the other{38} - the so-called "Blockburger test."{39}
Grady was a 5-4 decision, with Justice Marshall in the majority. In 1991 Justice Thomas replaced Justice Marshall on the bench and in 1993, in United States v. Dixon,{40} the Court voted 5-4 to overrule Grady (Justice Thomas voting with the new majority). The Dixon majority found Grady's "same conduct" test "unstable in application[,]" and concluded that the case was "a mistake."{41}
As federal law currently stands, therefore, double jeopardy bars multiple prosecutions only if the two crimes are the same as judged by the Blockburger test, which "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."{42} Put another way, a lesser offense is included within (and therefore the "same" as) a greater "only if each of its elements `is always a necessary element of' the greater offense."{43} The test looks to the pleadings, however, and not the statutes. A defendant prosecuted under a general criminal contempt statute, for having committed a particular crime in violation of a court order, cannot thereafter be prosecuted for the same crime as a criminal code violation, even though the contempt statute contains none of the elements of the code violation.{44}
§ 14.06
Multiple Punishments and Convictions - In a Single Trial
The double jeopardy clause also bars multiple convictions and punishments in a single prosecution.
Applying the Blockburger test in this context the Vermont Supreme Court has held that a defendant can be prosecuted and convicted in a single trial for manslaughter and DUI with death resulting,{45} and for aggravated assault and DUI with serious injury resulting.{46} Applying Blockburger in other contexts, the court has held that simple assault is not a lesser included offense of sexual assault,{47} trespass is not a lesser included offense of burglary,{48} and the misdemeanor offense of taking tangible personal property{49} is not a lesser included offense of grand larceny.{50} Attempts generally are lesser included offenses of the substantive crime.{51}
Special rules may prevent multiple punishments for crimes that are not technically the "same" under the Blockburger test. One common example is 23 V.S.A. § 1201(c), barring conviction of more than one DUI offense arising out of the same incident. Where two crimes are closely related, the state, although it can prosecute for both, may in some circumstances not be able to obtain more than one conviction or punishment.{52} Finally, a crime involving multiple victims may be punishable only as a single crime.{53}
§ 14.07
- Civil "Punishment"
It is not necessary to a claim of multiple punishment that both the punishments were imposed in criminal proceedings; "punishment" for double jeopardy purposes can also be imposed in a civil proceeding.{54} The question in such cases is whether the civil sanction is "punitive" or merely "remedial."{55} The court will look to such factors as whether the sanction "1) `involves an affirmative disability or restraint,' 2) `has historically been regarded as punishment,' 3) requires a finding of scienter, and 4) promotes the `twin aims of punishment - retribution and deterrence.'"{56} Applying this analysis, the Vermont Supreme Court held in State v. Strong that a civil license suspension for driving a car with a blood alcohol content over the statutory limit was a merely remedial sanction, and did not bar subsequent punishment, based on the same conduct, in a criminal DUI prosecution.{57}
§ 14.08
- Increased Punishments
a. On Sentence Reconsideration
By statute and rule, once a sentence has been imposed, both the defense and the prosecution may move for reconsideration.{58} The option of increasing a sentence, while it "appears to emit an aura of multiple punishment for a single offense,"{59} does not violate double jeopardy.{60}
b. After Appeal and Retrial
An increased sentence after the defendant's successful appeal and unsuccessful retrial also does not violate federal double jeopardy principles, but if the increase is motivated by judicial vindictiveness it constitutes a due process violation.{61} North Carolina v. Pearce{62} holds that a higher sentence after retrial must be based on "identifiable conduct occurring after the time of the original sentencing proceeding[,]" and the judge's reasons for the increase must affirmatively appear on the record. Subsequent cases found Pearce inapplicable when a different judge presided at the retrial and resentencing,{63} and substantially narrowed the rule in other respects.{64} The Vermont Supreme Court has not decided whether the state constitution provides more protection than Pearce against increased sentences after retrial.{65}
§ 14.09
Collateral Estoppel
When the defendant has been acquitted of one charge the double jeopardy clause may foreclose factual claims even if it does not prevent a new prosecution altogether. In Ashe v. Swenson{66} the United States Supreme Court held that the prosecution could not relitigate factual issues that were decided in the defendant's favor in a previous trial.{67} The Vermont court has refused to apply collateral estoppel in favor of a defendant, charged as an accomplice, whose codefendant was acquitted as a principal in a prior trial.{68}
Collateral estoppel, or "issue preclusion" as the Vermont Supreme Court now prefers to call it, has five "elements":
(1) preclusion is asserted against one who was a party or in privity with a party in the earlier action; (2) the issue was resolved by a final judgment on the merits; (3) the issue is the same as the one raised in the later action; (4) there was a full and fair opportunity to litigate the issue in the earlier action; and (5) applying preclusion in the later action is fair.{69}
A defendant may claim collateral estoppel in a criminal case even if the first proceeding was civil, or quasi-criminal, but all five criteria must be met.{70} In State v. Stearns the Vermont Supreme Court held that a fact finding in the defendant's favor at a summary DUI license suspension proceeding did not estop the prosecution from litigating the same issue in a subsequent criminal DUI prosecution. The fourth and fifth elements of issue preclusion were lacking in this context, although the court noted that the result might be different if the issue had been fully litigated in the suspension hearing.{71}
Estoppel may also work the other way: acquittal in a criminal trial may have collateral estoppel consequences in subsequent civil action (e.g., a probation revocation proceeding) involving the same conduct by the same defendant.{72}
§ 14.10
The Dual Sovereignty Doctrine
The double jeopardy bar only prevents multiple prosecutions by the same "sovereign." It generally permits multiple prosecutions for the same offense by federal and state authorities,{73} and by two states.{74} Particularly in drug cases a defendant may face a realistic possibility of federal charges even after state charges have been finally decided.
§ 14.11
Procedure
A double jeopardy claim against multiple prosecutions must be made before the second trial,{75} and cannot be made before the second prosecution is brought.{76}
In federal court the denial of a double jeopardy claim is immediately appealable as a collateral final order.{77} Although Vermont has substantially adopted federal collateral order doctrine,{78} it has not applied it to double jeopardy claims. Double jeopardy claims may, however, be appealed before the second trial as discretionary interlocutory appeals under V.R.A.P. 5(b).{79}
1. " . . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." The provision is enforceable against the states. Benton v. Maryland, 395 U.S. 784, 794 (1969); State v. Ramsay, 146 Vt. 70, 73 (1985).
2. See State v. Ramsay, 146 Vt. 70, 73 n.1 (1985).
2.5. See § 21.05, infra.
3. Downum v. United States, 372 U.S. 734, 737-38 (1963); State v. Corey, 151 Vt. 325, 330 (1989); In re Dunkerley, 135 Vt. 260, 263 (1977).
4. State v. Villeneuve, 155 Vt. 360, 363 (1990); State v. Corey, 151 Vt. 325, 330 (1989).
5. Serfass v. United States, 420 U.S. 377, 388 (1975); In re Dunkerley, 135 Vt. 260, 263 (1977).
6. State v. Forbes, 147 Vt. 612, 616 (1987).
7. State v. Duval, 155 Vt. 122, 127 (1991).
8. State v. Lebo, 129 Vt. 449, 450 (1971) (prison disciplinary proceeding did not bar later criminal prosecution for escape).
9. See, e.g., Breed v. Jones, 421 U.S. 519, 528-31 (1975) (civil juvenile delinquency proceedings held "essentially criminal" for double jeopardy purposes); Cf. Dixon v. United States, 61 L.W. 4835 (1993) (criminal contempt).
10. State v. Strong, No. 91-058, slip op. 8-9 (Vt. Jan. 10, 1992).
11. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). 13 V.S.A. § 6556 also bars prosecution for the same offense after acquittal.
12. Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 308 (1984); Price v. Georgia, 398 U.S. 323, 326 (1970).
13. See § 34.10, infra.
14. Illinois v. Vitale, 447 U.S. 410, 420-21 (1980).
15. State v. Mace, 154 Vt. 430, 435 (1990), overturned on other grounds, Mace v. Amestoy, 765 F. Supp. 847 (D. Vt. 1991). In the absence of a plea agreement to dismiss the greater charge the double jeopardy ban on reprosecution is unclear. See Ohio v. Johnson, 467 U.S. 493, 500-01 (1984) (accepting guilty plea on lesser offense while charges on greater remain pending does not bar later prosecution for greater charge); State v. Forbes, 147 Vt. 612, 617 n.* (1987); V.R.Cr.P. 13(b)(3) ("Entry of a plea of guilty or nolo contendere to one offense does not bar the subsequent prosecution of a related offense.").
16. United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977).
17. See V.R.Cr.P. 29.
18. Smalis v. Pennsylvania, 476 U.S. 140 (1986) (dismissal at bench trial for insufficient evidence); United States v. Martin Linen Supply Co., 430 U.S. 564, 575 (1977).
19. Burks v. United States, 437 U.S. 1 (1978).
20. Arizona v. Washington, 434 U.S. 497, 505 (1978); United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
21. Richardson v. United States, 468 U.S. 317, 325 (1984); Corey v. District Court, 917 F.2d 88, 91 (2d Cir. 1990).
22. 135 Vt. 260 (1977).
23. Dunkerley v. Hogan, 579 F.2d 141 (2d Cir. 1978), cert. denied, 439 U.S. 1090 (1979).
24. 151 Vt. 325 (1989).
25. Corey v. District Court, 917 F.2d 88 (2d Cir. 1990).
26. United States v. Dinitz, 424 U.S. 600, 608 (1976).
27. Oregon v. Kennedy, 456 U.S. 667, 679 (1982); State v. Wood, 146 Vt. 57, 58 (1985).
28. State v. Wood, 146 Vt. 57, 58-59 (1985). The court in Wood did not decide whether retrial should be barred under state law for something less than intentional goading but more than mere negligence.
29. Price v. Georgia, 398 U.S. 323, 326 (1970).
30. In re Hill, 149 Vt. 431 (1988). The pendency of a postconviction challenge to the conviction can also keep the privilege alive. State v. Couture, 146 Vt. 268, 274-75 (1985). But see State v. Gleason, 154 Vt. 205, 212 (1990) (when sentence is imposed defendant faces no threat of reprosecution and privilege against self-incrimination is extinguished). See § 30.03, infra.
31. Smalis v. Pennsylvania, 476 U.S. 140, 145-46 (1986); United States v. Martin Linen Supply Co., 430 U.S. 564, 570 (1977).
32. State v. Ramsay, 146 Vt. 70, 72-74 (1985).
33. State v. Ramsay, 146 Vt. 70, 74 (1985). See also State v. Livi, 146 Vt. 641, 642 (1986) (prosecution for DLS not barred by acquittal for DLS charged on a different date).
34. Dowling v. United States, 493 U.S. 342 (1990); United States v. Felix, 112 S. Ct. 1377, 1383 and n.3 (1992).
35. State v. Doucette, 150 Vt. 125 (1988).
36. But see § 14.06, infra, for a discussion of multiple punishment cases.
37. 495 U.S. 508, 521 (1990).
38. Grady v. Corbin, 495 U.S. 508, 521-22 (1990). The decision overturns prior Vermont law on the subject. See, e.g., State v. Ramsay, 146 Vt. 70, 73 (1985); State v. Parker, 123 Vt. 369, 371 (1963). The Blockburger test, which remains the appropriate measure in multiple punishment cases, is explained in § ___, infra.
39. Blockburger v. United States, 284 U.S. 299 (1932).
40. 61 L.W. 4835 (1993).
41. 61 L.W. 4835, 4840, 4841 (1993).
42. United States v. Dixon, 61 L.W. 4835, 4837 (1993); Blockburger v. United States, 284 U.S. 299, 304 (1932).
43. State v. Bourne, 139 Vt. 14, 16 (1980) (quoting Illinois v. Vitale, 447 U.S. 410, 416 (1980)).
44. United States v. Dixon, 61 L.W. 4835, 4837-38 (1993). See also Illinois v. Vitale, 447 U.S. 410 (1980); Harris v. Oklahoma, 433 U.S. 682 (1977).
45. State v. Poirier, 142 Vt. 595, 598-99 (1983).
46. State v. Perry, 151 Vt. 637, 639-41 (1989).
47. State v. Bourn, 139 Vt. 14 (1980).
48. State v. Savo, 139 Vt. 644, 647 (1981).
49. 13 V.S.A. § 3833.
50. State v. Hanson, 141 Vt. 228, 230-32 (1982).
51. V.R.Cr.P. 31(c); State v. Young, 139 Vt. 535, 542 (1981).
52. State v. French, 139 Vt. 320, 321 (1981) (state may not be entitled to convictions for kidnapping and sexual assault or robbery "where the detention necessary to support the kidnapping conviction was quantitatively no greater than the detention which is, by virtue of the nature of the crime, incidental to the underlying rape or robbery").
53. Compare Bell v. United States, 349 U.S. 81 (1954) (transporting two women for purposes of prostitution was a single Mann Act violation) and Ladner v. United States, 358 U.S. 169 (1958) (assault wounding two officers constituted only single crime) with State v. Senna, 154 Vt. 343, 346-47 (1990) (kidnapping three women warranted three convictions and three consecutive sentences).
54. United States v. Halper, 490 U.S. 435 (1989); State v. Strong, No. 91-058, slip op. 4 (Vt. Jan. 10, 1992).
55. United States v. Halper, 109 S. Ct. 1892, 1902 (1989); State v. Strong, No. 91-058, slip op. 4 (Vt. Jan. 10, 1992).
56. State v. Strong, No. 91-058, slip op. 5 (Vt. Jan. 10, 1992) (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963)).
57. State v. Strong, No. 91-058, slip op. 6-7 (Vt. Jan. 10, 1992). See also Leonard v. Leonard, 150 Vt. 202, 203 (1988) (no merit to claim that civil damage award, based on criminal conduct, constituted additional punishment for crime).
58. 13 V.S.A. § 7042; V.R.Cr.P. 35(b),(c).
59. State v. Rice, 145 Vt. 25, 30 (1984).
60. United States v. DiFrancesco, 449 U.S. 117 (1980); State v. Rice, 145 Vt. 25, 29-30 (1984); State v. Boyer, 144 Vt. 393, 395 (1984). When the claim for an increased sentence is based on new evidence, the state must show "why by due diligence it could not have discovered the allegedly new evidence" at the original sentencing hearing. State v. Rice, 145 Vt. at 33.
61. North Carolina v. Pearce, 395 U.S. 711 (1969); State v. Thompson, No. 91-180 (Vt. May 15, 1992); State v. Percy, 156 Vt. 468, 481-82 (1990).
62. 395 U.S. 711, 726 (1969).
63. Texas v. McCullough, 475 U.S. 134, 140 (1986); State v. Percy, 156 Vt. 468, 481-82 (1990).
64. Pearce does not apply when the first sentence was imposed after a guilty plea and the second after a trial. Alabama v. Smith, 490 U.S. 794 (1989). The requirement of subsequent "conduct" can be satisfied by showing subsequent events (e.g., a new conviction) based on conduct occurring before the first sentence. Wasman v. United States, 468 U.S. 559 (1984). The Vermont Supreme Court has held that "subsequent conduct" includes the continued suffering of the victim during the delay occasioned by defendant's appeal. State v. Percy, No. 91-131, slip op. 13 (Vt. May 8, 1992).
65. State v. Percy, No. 91-131, slip op. 12-13 (Vt. May 8, 1992); State v. Percy, 156 Vt. 468, 481 n.7 (1990).
66. 397 U.S. 436 (1970).
67. Ashe v. Swenson, 397 U.S. 436, 445-46 (1970). In a robbery with several victims defendant's acquittal of robbing one of the victims could only have been based on the view that defendant was not one of the robbers; the prosecution was therefore estopped from claiming that he robbed another of the victims. Id. at 445.
68. Standefer v. United States, 447 U.S. 10 (1980); State v. Miller, 146 Vt. 164, 176-77 (1985).
69. State v. Stearns, No. 91-543, slip op. 2-3 (Vt. Sept. 4, 1992) (quoting Trepanier v. Getting Organized, Inc., 155 Vt. 259, 265 (1990)).
70. State v. Stearns, No. 91-543, slip op. 3 (Vt. Sept. 4, 1992).
71. State v. Stearns, No. 91-543, slip op. 7-8 and n.3 (Vt. Sept. 4, 1992).
72. See State v. Goldsmith, No. 91-211 (Vt. Sept. 3, 1992) (unpublished) (not reaching the question).
73. Bartkus v. Illinois, 359 U.S. 121 (1959).
74. Heath v. Alabama, 474 U.S. 82, 88 (1985).
75. State v. Callahan, 155 Vt. 571, 573-74 (1991).
76. See, e.g., State v. DeLaBruere, 154 Vt. 237, 278 (1990).
77. Abney v. United States, 431 U.S. 651 (1977).
78. See § 40.05, infra. State v. Lafayette, 148 Vt. 288 (1987); V.R.A.P. 5.1.
79. See State v. Corey, 151 Vt. 325, 326 (1989).