Double Jeopardy Law Made Simple

Yale Law Journal

Volumn 106, Issue 6, 1997, Pages 1807-1848

  Amar, Akhil Reed ^a  

^a NONE

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EID: 0347683613     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797320     Document Type: Review

References (185)

1. U.S. CONST, amend. V.
2. See, e.g., United States v. Ursery, 116 S. Ct. 2135, 2142-47 (1996); see also Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937 (1994); United States v. Halper, 490 U.S. 435 (1989).
3. See Blockburger v. United States, 284 U.S. 299 (1932). In fact, the Blockburger case itself does not quite stand for the global test of sameness that later courts have attributed to it. See infra note 38. For an example of a modern-day application of the so-called Blockburger test, see, e.g., Brown v. Ohio, 432 U.S. 161, 166-69 (1977), which barred prosecution for auto theft on double jeopardy grounds because the defendant had been previously convicted of the lesser-included offense of joyriding.
4. Garrett v. United States, 471 U.S. 773, 786 (1985) (holding that continuing criminal enterprise (CCE) offense is not same as any of its lesser-included predicate crimes).
5. See Crist v. Bretz, 437 U.S. 28, 32-38 (1978).
6. See, e.g., id. at 34 n.10; Arizona v. Washington, 434 U.S. 497, 505-16 (1978); Wade v. Hunter, 336 U.S. 684, 688-92 (1949).
7. United States v. Jenkins, 420 U.S. 358 (1975).
8. See id. at 365-70 (generally barring any government appeal that would require retrial).
9. United States v. Scott, 437 U.S. 82 (1978).
10. See id. at 95-101 (allowing erroneous ruling to be appealed and case retried if ruling was not related to factual guilt or innocence).
11. See infra Part III (defending "continuing jeopardy" approach that would permit appeal of virtually all erroneous rulings by trial judge).
12. Grady v. Corbin, 495 U.S. 508 (1990), overruled by United States v. Dixon, 113 S. Ct. 2849 (1993).
13. See id. at 521 (holding that in second trial, government may not "prove conduct that constitutes an offense for which the defendant has already been prosecuted").
14. United States v. Dixon, 509 U.S. 688 (1993).
15. See id. at 703-12 (overruling Corbin and restoring Blockburger as sole test of sameness).
16. Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937 (1994).
17. For more analysis, see infra text accompanying notes 105-35.
18. Albernaz v. United States, 450 U.S. 333, 343 (1981).
19. A roadmap may be helpful here. In Part I, I explore the scope of the Double Jeopardy Clause. Does it, for example, ever apply to civil cases? In Part II, I ask when two offenses should be deemed the same, and I identify the functional concerns that should animate analysis here. In Part III, I examine when jeopardy begins and ends - attaches - with particular emphasis on the issues of continuing jeopardy, erroneous jury verdicts, and mistrials. To put the point textually rather than functionally, Part I explores the phrase "life or limb"; Part II explains the words "same offense"; and Part III expounds the trope "twice in jeopardy."
20. See United States v. Gibert, 25 F. Cas. 1287, 1294-97 (C.C.D. Mass. 1834) (No. 15,204) (finding "life or limb" clause inapplicable to misdemeanors); see also OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, REPORT TO THE ATTORNEY GENERAL ON DOUBLE JEOPARDY APPEALS OF ACQUITTALS, No. 6 (1987) [hereinafter OLP REPORT], reprinted in 22 U. MICH. J.L. REFORM 831, 842 (1989) (presenting originalist evidence that "life or limb" was term of art for felonies); cf. id. at 862 n.108 (declining to press this point in light of well-established case law reading phrase more broadly to encompass misdemeanors too).
21. See United States v. Gibert, 25 F. Cas. 1287, 1294-97 (C.C.D. Mass. 1834) (No. 15,204) (finding "life or limb" clause inapplicable to misdemeanors); see also OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, REPORT TO THE ATTORNEY GENERAL ON DOUBLE JEOPARDY APPEALS OF ACQUITTALS, No. 6 (1987) [hereinafter OLP REPORT], reprinted in 22 U. MICH. J.L. REFORM 831, 842 (1989) (presenting originalist evidence that "life or limb" was term of art for felonies); cf. id. at 862 n.108 (declining to press this point in light of well-established case law reading phrase more broadly to encompass misdemeanors too).
22. 85 U.S. (18 Wall.) 163 (1873).
23. See id. at 170-73.
24. Id. at 173.
25. See 8 THE OXFORD ENGLISH DICTIONARY 214 (2d ed. 1989).
26. See id. at 956 (quoting source from 1205 using phrases "lif & leomen" and "leome & vppe lif"; source from 1300 using phrase "lerne or lif"; source from 1362 using phrase "his lyf and his leome"; source from 1480 using phrase "lyf and lymme"; and source from 1548 using phrase "lifes and lymmes").
27. See, e.g., 4 WILLIAM BLACKSTONE, COMMENTARIES *376-77.
28. See supra text accompanying note 23.
29. U.S. CONST, art. I, § 8, cls. 12-14.
30. Id. cl. 8.
31. Id. amend. I. For an earlier exploration of this analogy, see Akhil Reed Amar, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 HARV. L. REV. 124, 134 & n.66 (1992).
32. See U.S. CONST. amend. VI. For more discussion and analysis of this point, see Akhil Reed Amar, Foreword: Sixth Amendment First Principles, 84 GEO. L.J. 641, 647-49 (1996).
33. Cf. WILLIAM SHAKESPEARE, OTHELLO, act 3, sc. 3 ("Who steals my purse steals trash . . . . But he that filches from me my good name/Robs me of that which not enriches him/And makes me poor indeed."). Note the metaphoric link here to physical branding. See supra text accompanying note 26.
34. For a brilliant meditation on these (and other) themes of the play, see Kenji Yoshino, The Lawyer of Belmont, 9 YALE J.L. & HUMAN. (forthcoming Summer 1997).
35. To be sure, a genuine criminal punishment masquerading as a "civil" sanction can and should be unmasked by courts; but this unmasking would summon up all the Constitution's criminal procedure protections, not merely the Double Jeopardy Clause. See infra text accompanying note 128. It is also worth noting that not until the late 1980s did the Supreme Court ever embrace the novel notion that the Double Jeopardy Clause could be stretched to cover some civil suits about money. See United States v. Halper, 490 U.S. 435 (1989). For an analysis of how a Due Process Clause analysis would have better fit the facts of Halper, see infra text accompanying notes 130-35.
36. See infra text accompanying notes 130-43.
37. Cf. GERTRUDE STEIN, SACRED EMILY (1913).
38. See infra Part III.
39. See Blockburger v. United States, 284 U.S. 299, 304 (1932). On its facts, Blockburger propounded a test for identifying when two offenses could be charged in a single proceeding, resulting in two convictions and possibly cumulative sentences. This test thus addressed what I shall later call the "double-counting" problem. See infra Subsection II.B.1. Later courts, however, applied Blockburger's test as a general measure of double jeopardy sameness for situations involving successive prosecutions. See, e.g., Brown v. Ohio, 432 U.S. 161, 168 (1977) (noting that greater and lesser-included offenses are "by definition the 'same'" for double jeopardy purposes).
40. See Blockburger, 284 U.S. at 304.
41. See infra Subsections II.B.3-4 (discussing implicit acquittals and collateral estoppel).
42. Diaz v. United States, 223 U.S. 442 (1912).
43. See id. at 448-49. This case is discussed infra text accompanying note 76.
44. Garrett v. United States, 471 U.S. 773 (1985).
45. See id. This case is discussed infra text accompanying notes 82-87.
46. 432 U.S. 161 (1977). This case is discussed infra text accompanying notes 78-81.
47. See Garrett, 471 U.S. at 786; Diaz, 223 U.S. at 448-49.
48. See 4 BLACKSTONE, supra note 26, at *335-36; 2 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN *240-55; 2 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 368-79 (Garland Publ'g, Inc. 1978) (1721). At common law, a third plea, autrefois attaint complemented autrefois acquit and autrefois convict. Courts have also linked double jeopardy to the plea of prior pardon. See United States v. Scott, 437 U.S. 82, 87 (1978); United States v. Wilson, 420 U.S. 332, 340 (1975).
49. See 4 BLACKSTONE, supra note 26, at *335-36; 2 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN *240-55; 2 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 368-79 (Garland Publ'g, Inc. 1978) (1721). At common law, a third plea, autrefois attaint complemented autrefois acquit and autrefois convict. Courts have also linked double jeopardy to the plea of prior pardon. See United States v. Scott, 437 U.S. 82, 87 (1978); United States v. Wilson, 420 U.S. 332, 340 (1975).
50. See 4 BLACKSTONE, supra note 26, at *335-36; 2 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN *240-55; 2 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 368-79 (Garland Publ'g, Inc. 1978) (1721). At common law, a third plea, autrefois attaint complemented autrefois acquit and autrefois convict. Courts have also linked double jeopardy to the plea of prior pardon. See United States v. Scott, 437 U.S. 82, 87 (1978); United States v. Wilson, 420 U.S. 332, 340 (1975).
51. Elsewhere, I have suggested that the protection of the innocent from erroneous conviction is one of the root principles of our system of constitutional criminal procedure. See, e.g., Amar, supra note 31, at 642-46; Akhil Reed Amar, The Future of Constitutional Criminal Procedure, 33 AM. CRIM. L. REV. 1123 (1996). See generally AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES (1997).
52. Elsewhere, I have suggested that the protection of the innocent from erroneous conviction is one of the root principles of our system of constitutional criminal procedure. See, e.g., Amar, supra note 31, at 642-46; Akhil Reed Amar, The Future of Constitutional Criminal Procedure, 33 AM. CRIM. L. REV. 1123 (1996). See generally AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES (1997).
53. Thus, there is a resonance between the autrefois acquit idea and the Winship principle that seeks to avoid erroneous convictions by placing a heavy burden of proof on the government. See In re Winship, 397 U.S. 358 (1970).
54. See Amar, supra note 31, at 658-62.
55. Cf. George Kannar, The Constitutional Catechism of Antonin Scalia, 99 YALE L.J. 1297, 1323 n.128, 1324, 1337 (1990) (tracing similar tropes in writings of Justice Scalia).
56. See, e.g., 4 BLACKSTONE, supra note 26, at *336 ("It is to be observed that the pleas of autrefois acquit and autrefois convict . . . must be upon a prosecution for the same identical act and crime.") (emphasis altered); 2 HALE, supra note 47, at *245-46 (stating that burglary and larceny committed "at the same time" are different offenses; prior acquittal of one will not bar prosecution of other); 2 HAWKINS, supra note 47, at 371 ("It seems that it is no Plea to an Appeal of Larceny, That the Defendant hath been found Not guilty in an Action of Trespass brought against him by the same Plaintiff for the same Goods; for Larceny and Trespass are entirely different."); id. at 376 (offering similar example). The foregoing sources, and many others, are discussed in Grady v. Corbin, 495 U.S. 508, 530-35 (1990) (Scalia, J., dissenting). That discussion, in turn, was heavily relied on in United States v. Dixon, 509 U.S. 688, 709-10 (1993).
57. See, e.g., 4 BLACKSTONE, supra note 26, at *336 ("It is to be observed that the pleas of autrefois acquit and autrefois convict . . . must be upon a prosecution for the same identical act and crime.") (emphasis altered); 2 HALE, supra note 47, at *245-46 (stating that burglary and larceny committed "at the same time" are different offenses; prior acquittal of one will not bar prosecution of other); 2 HAWKINS, supra note 47, at 371 ("It seems that it is no Plea to an Appeal of Larceny, That the Defendant hath been found Not guilty in an Action of Trespass brought against him by the same Plaintiff for the same Goods; for Larceny and Trespass are entirely different."); id. at 376 (offering similar example). The foregoing sources, and many others, are discussed in Grady v. Corbin, 495 U.S. 508, 530-35 (1990) (Scalia, J., dissenting). That discussion, in turn, was heavily relied on in United States v. Dixon, 509 U.S. 688, 709-10 (1993).
58. See, e.g., 4 BLACKSTONE, supra note 26, at *336 ("It is to be observed that the pleas of autrefois acquit and autrefois convict . . . must be upon a prosecution for the same identical act and crime.") (emphasis altered); 2 HALE, supra note 47, at *245-46 (stating that burglary and larceny committed "at the same time" are different offenses; prior acquittal of one will not bar prosecution of other); 2 HAWKINS, supra note 47, at 371 ("It seems that it is no Plea to an Appeal of Larceny, That the Defendant hath been found Not guilty in an Action of Trespass brought against him by the same Plaintiff for the same Goods; for Larceny and Trespass are entirely different."); id. at 376 (offering similar example). The foregoing sources, and many others, are discussed in Grady v. Corbin, 495 U.S. 508, 530-35 (1990) (Scalia, J., dissenting). That discussion, in turn, was heavily relied on in United States v. Dixon, 509 U.S. 688, 709-10 (1993).
59. See Ashe v. Swenson, 397 U.S. 436, 453 (1970) (Brennan, J., concurring) ("English common law . . . severely restricted the power of prosecutors to combine several charges in a single trial."); 1 JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 508 (William S. Hein & Co., Inc. 1980) (1883) ("In an indictment for felony one offence only can practically be charged.").
60. But see Ashe, 397 U.S. at 453-54 (Brennan, J., concurring) (arguing that Double Jeopardy Clause generally requires that all offenses arising out of "same transaction" be prosecuted in single proceeding).
61. See Corbin, 495 U.S. at 529-30 (Scalia, J., dissenting).
62. Cf. United States v. MacDonald, 435 U.S. 850, 858-59 (1978) (making similar point about Speedy Trial Clause).
63. See Corbin, 495 U.S. at 529-30 (Scalia, J., dissenting); Abney v. United States, 431 U.S. 651, 660-62 (1977).
64. I place the word "transaction" in quotes because this word is hardly self-defining, as even the chief proponent of a "same transaction" rule has acknowledged. See Ashe, 397 U.S. at 454 n.8 (Brennan, J., concurring). In light of the incentive effects created by other (relatively easily enforced) constitutional rules - namely, the asymmetric rule of collateral estoppel - a global mandatory joinder rule for offenses growing out of the same "transaction" is probably unnecessary and unwise as a matter of due process (though textually permissible). For more explanation, see infra text accompanying notes 102, 130-32.
65. For an excellent discussion, see Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy, 1978 SUP. CT. REV. 81, 111-22.
66. See id. at 114 ("There is simply no way to make sense out of the notion that a course of conduct is 'really' only one act, rather than two or three, or, indeed, as many as one likes."); Comment, Twice in Jeopardy, 75 YALE L.J. 262, 275-77 (1965) (making similar point).
67. See Nancy J. King, Portioning Punishment: Constitutional Limits on Successive and Excessive Penalties, 144 U. PA. L. REV. 101 (1995); Westen & Drubel, supra note 59, at 114. I place the word "act" in quotes here because, like "transaction," "act" is hardly self-defining. Cf. supra note 60; see also supra note 58. By contrast, an "offense" on my view connotes a precise and discrete set of elements and penalties defined by statute or decisional law; and so the word is much easier to define and apply. Cf. King, supra, at 182 (arguing that Eighth Amendment prohibits excessive overall punishment for single act, and noting that "[t]he concept of punishment under the Eighth Amendment, unlike the textual reference to 'offence' in the Fifth Amendment, is not limited by statutory elements or legislative intent").
68. See generally Westen & Drubel, supra note 59, at 111-22; see also cases cited infra note 67.
69. Diaz v. United States, 223 U.S. 442 (1912).
70. Brown v. Ohio, 432 U.S. 161 (1977).
71. Garrett v. United States, 471 U.S. 773 (1985). Diaz, Brown, and Garrett are discussed infra Subsection II.B.2.
72. In 1995, Jon Marcus and I sketched out a preliminary critique of Blockburger that set the stage for the more thoroughgoing critique I shall now offer. See Akhil Reed Amar & Jonathan L. Marcus, Double Jeopardy Law After Rodney King, 95 COLUM. L. REV. 1, 28-38 (1995). Consider the present Essay, if you will, my own double take on double jeopardy.
73. See Garrett, 471 U.S. at 778-79; Ohio v. Johnson, 467 U.S. 493, 499 n.8 (1984); Missouri v. Hunter, 459 U.S. 359, 366-67 (1983).
74. See King, supra note 61, at 194 n.269.
75. Imagine, for example, three crimes, A+B, A+C, and B+C. The first crime (A+B) is punishable by five years, the second (A+C) is also punishable by five years, and the third (B+C) is punishable by four years. Presumably, the legislature here deems A alone worthy of three years; B worthy of two; and C worthy of two. But exactly what is a judge to do if she finds two more crimes on the statute books, A+D, and B+D, punishable by four years apiece? The simple presumptive (additive) math breaks down.
76. 357 U.S. 386 (1958) (upholding six convictions and three consecutive sentences arising out of two narcotics sales, in violation of three statutes; first statute banned drug sale without "a written order," second banned drug sale without "stamped package," and third banned sale of illegally imported drug). The case is discussed in Comment, supra note 60, at 303-04.
77. Suppose two statutes share a common substantive legal element, but the element is described in slightly different language in the two statutes. (Say, one uses the word "intentionally" and the other, "purposefully.") The anti-double-counting principle turns on things, not words, and so two verbal formulas describing the same thing should (presumptively) be treated as defining the same legal element. Cf. Amar & Marcus, supra note 66, at 38-44 (putting forth similar argument for double jeopardy analysis in dual sovereignty context).
78. As we shall see, other constitutional principles that are - or at least should be - in place can severely constrain the prosecutor's incentive to strategically bifurcate her prosecution. See infra text accompanying notes 102, 130-32.
79. A similar "peek," of course, can lawfully occur when a defendant is tried, convicted, and then - because of impermissible progovernment error - the conviction is set aside and the defendant is retried. See infra Part III. One obvious way to reduce the prosecutor's incentive to bifurcate litigation and thus evade statutory limits on discovery is to allow liberal discovery against the defendant in the first place. Renée Lettow and I have elsewhere explained why the Fifth Amendment Self-Incrimination Clause, rightly understood, poses a much smaller obstacle to pretrial discovery against defendants than is conventionally assumed. See Akhil Reed Amar & Renée B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 MICH. L. REV. 857 (1995) (arguing that defendant can be forced to tell all pretrial, with only narrow "testimonial immunity" granted, enabling prosecutor to use all testimonial fruit, but not defendant's words themselves, at trial). Here we see a way in which overprotecting some defendants' rights - in this case rights to resist discovery - may end up hurting defendants in other ways.
80. Cf. United States v. Goodwin, 457 U.S. 368, 372, 384 (1982) (affirming that due process prohibits prosecutors from bringing new vindictive charges to penalize defendant for exercising right to jury trial on initial charge, but declining to presume vindictiveness without specific proof); Blackledge v. Perry, 417 U.S. 21 (1974) (applying due process principles to constrain prosecutorial vindictiveness after successful defendant appeal); North Carolina v. Pearce, 395 U.S. 711 (1969) (developing due process test to protect against judicial vindictiveness when judge "loses" to defendant who successfully appeals judge's verdict).
81. See Westen & Drubel, supra note 59, at 162-63 (noting how Blockburger test establishes narrow mandatory joinder rule).
82. Diaz v. United States, 223 U.S. 442, 448-49 (1912) (citations omitted).
83. For recent favorable citations of Diaz, see, e.g., Rutledge v. United States, 116 S. Ct. 1241, 1250 n.17 (1996); Grady v. Corbin, 495 U.S. 508, 516 n.7 (1990); Garrett v. United States, 471 U.S. 773, 791-93 (1985); id. at 796-98 (O'Connor, J., concurring); id. at 803-04 (Stevens, J., dissenting); Brown v. Ohio, 432 U.S. 161, 169 n.7 (1977); and Jeffers v. United States, 432 U.S. 137, 151-52 (1977) (plurality opinion). See also Illinois v. Vitale, 447 U.S. 410, 420 n.8 (1980) (referring to Diaz principle, but not by name).
84. 432 U.S. 161 (1977).
85. Id. at 169 n.7 (emphasis added).
86. Id. at 168-69 (emphasis added).
87. Nothing in the Brown Court's opinion suggests any governmental bad faith. Thus we may assume that the police in the county where Brown was caught and immediately charged with joyriding simply did not know of the prosecutorial plans of charging authorities from another county, where the defendant had stolen the car nine days earlier. Brown also raised a double-counting issue: Should Brown have received a setoff for the one month he served for joyriding against his six-month car theft sentence? But this concern should not have precluded a second trial itself; it merely went to the proper amount of additional punishment to be meted out after a second conviction.
88. 471 U.S. 773 (1985).
89. See id. at 775.
90. See id. at 788-89, 791-93.
91. See id. at 789.
92. See id. at 789-90.
93. Id. at 786.
94. FED. R. CRIM. P. 31(c).
95. 355 U.S. 184, 190-91 (1957) (stating that when jury convicts on lesser-included offense without rendering explicit verdict on greater offense, "the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the [greater] charge . . . . [W]e believe [this implicit acquittal assumption] legitimate.") (alternative holding); see also Grady v. Corbin, 495 U.S. 508, 533-34 (1990) (Scalia, J., dissenting) ("'Thus an acquittal on an indictment for murder will be a good bar to an indictment for manslaughter [because] had the defendant been guilty, not of murder but of manslaughter, he would have been found guilty of the latter offence upon that indictment . . . .'") (quoting Commonwealth v. Roby, 30 Mass. (12 Pick.) 496, 504 (1832)), overruled by United States v. Dixon, 113 S. Ct. 2849 (1993).
96. The attentive reader will note that here, at least, the Double Jeopardy Clause itself can bear the load - perhaps, however, with a little help from lenity principles construing the jury's arguably ambiguous verdict as an implicit acquittal on robbery.
97. For further elaboration, see Amar & Marcus, supra note 66, at 33.
98. 131 U.S. 176 (1889).
99. Id. at 189-90 (emphasis added); see also Grady v. Corbin, 495 U.S. 508, 531-32 (1990) (Scalia, J., dissenting) (unselfconsciously quoting similar observation of Charles Petersdorff in 1825), overruled by United States v. Dixon, 113 S. Ct. 2849 (1993).
100. Cf. Corbin, 495 U.S. at 531 (Scalia, J., dissenting) ("'But if one charge consists of the circumstances A. B. C. and another of the circumstances A. D. E., then, if [A] does not itself constitute a distinct substantive offense, an acquittal from the one charge cannot include an acquittal of the other.'") (quoting 1 THOMAS STARKIE, CRIMINAL PLEADING 323 (2d ed. 1822)) (emphasis added).
101. 397 U.S. 436 (1970).
102. Id. at 446 (quoting Green v. United States, 355 U.S. 184, 190 (1957)).
103. This claim enabled the Ashe Court to sidestep an earlier case with virtually identical facts, decided against the defendant under the Due Process Clause. See Hoag v. New Jersey, 356 U.S. 464 (1958). But the Ashe Court could have distinguished away Hoag simply by reinterpreting due process in light of the intervening incorporation of the Double Jeopardy Clause against states in Benton v. Maryland, 395 U.S. 784, 793-96 (1969). This intervening event, the Court should have argued, properly exerted a new gravitational pull on due process principles. See infra text accompanying note 143.
104. Ashe was suspected of having robbed six poker players around a poker table. In his first trial, the government prosecuted him for robbing one of the players, Donald Knight, and Ashe won an acquittal on grounds of mistaken identity. In the second trial, Ashe was charged with a formally different robbery - of one of the other five players. Each robbery was a distinct offense for "unit of prosecution" purposes, see supra text accompanying note 59; in other words, Ashe could initially have been charged with six offenses, received six convictions, and served six cumulative sentences, see Ashe, 397 U.S. at 446.
105. See In re Winship, 397 U.S. 358, 362-64 (1970) (finding due process requires governmental proof beyond reasonable doubt in criminal cases).
106. See Ashe, 397 U.S. at 443 (noting "lack of 'mutuality'") (citation omitted); see also Simpson v. Florida, 403 U.S. 384, 386 (1971) (per curiam) (reaffirming lack of "mutuality"; convicted defendant is not estopped in second trial from denying facts resolved against him in first trial).
107. This factor should be especially important for those who believe, as I do, that constitutional criminal procedure should protect the innocent from erroneous conviction without needlessly advantaging the guilty. See generally AMAR, supra note 48.
108. See United States v. Dixon, 509 U.S. 688, 710 n.15 (1993) (noting that because of Ashe asymmetry, prosecutors "have little to gain and much to lose from [a bifurcation] strategy").
109. The jury's right to a general verdict is intimately connected to the jury's right to acquit against the evidence. I do not challenge this right here - on the contrary. See infra text accompanying notes 152, 157-58, 167.
110. For earlier discussions of this point, see Amar & Marcus, supra note 66, at 33 n.166, and Cynthia L. Randall, Comment, Acquittals in Jeopardy: Criminal Collateral Estoppel and the Use of Acquitted Act Evidence, 141 U. PA. L. REV. 283, 317-25 (1992). Presumably, the voting rule in the jury for any special verdict would be the same one prescribed by domestic law for general verdicts. Note that, under a broad view of Ashe's asymmetry, a defendant who prevails on a given issue could have the right not only to prevent any future criminal prosecution based on that issue, but also to vacate any past criminal conviction so based.
111. 495 U.S. 508 (1990).
112. Id. at 521.
113. Justice Scalia has made this point well. See id. at 529-30 (Scalia, J., dissenting); see also supra text accompanying notes 54-57.
114. Cf. supra text accompanying note 106.
115. 397 U.S. 436 (1970).
116. See Corbin, 495 U.S. at 518 n.8, 518-19.
117. Id. at 518.
118. See id. at 528 (Scalia, J., dissenting) (affirming Ashe's conduct-based analysis where earlier adjudication resolved factual issue "in the defendant's favor") (emphasis added); United States v. Dixon, 509 U.S. 688, 705 (1993) ("[Ashe] may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts. But this does not establish that the Government 'must . . . bring its prosecutions . . . together.' It is entirely free to bring them separately, and can win convictions in both.").
119. Corbin, 495 U.S. at 520-21 (citation omitted).
120. See id. at 516 n.7.
121. 509 U.S. 688, 704 (1993).
122. See id. at 740 (White, J., concurring in judgment in part and dissenting in part); id. at 741 (Blackmun, J., concurring in judgment in part and dissenting in part); id. at 744 (Souter, J., joined by Stevens, J., concurring in judgment in part and dissenting in part).
123. See id. at 718 (Rehnquist, C.J., joined by O'Connor & Thomas, JJ., concurring in part and dissenting in part).
124. See id. at 697-700 (Scalia, J., joined by Kennedy, J.)
125. See, e.g., California v. Acevedo, 500 U.S. 565, 581-85 (1991) (Scalia, J., concurring in judgment) (championing plain meaning and commonsensical approach to Fourth Amendment reasonableness); Minnick v. Mississippi, 498 U.S. 146, 166-67 (1990) (Scalia, J., dissenting) (arguing for plain meaning ana commonsensical understanding of Fifth Amendment compulsion under Self-Incrimination Clause); see also Grady v. Corbin, 495 U.S. 508, 529-30, 540-43 (1990) (Scalia, J., dissenting) (rejecting majority analysis on textual grounds that "offense" in Double Jeopardy Clause means legally-defined crime, not factual transaction, and that "put in jeopardy" precludes second trial itself, thus calling for pretrial plea; and on commonsensical grounds that majority approach would be unworkable and would lead to absurd results), overruled by United States v. Dixon, 113 S. Ct. 2849 (1993).
126. See Dixon, 509 U.S. at 692-93 (describing bench trial in contempt proceeding). According to the Court, the Constitution does not require a jury in a "petty" criminal case where the authorized term of imprisonment is six months or less. See Baldwin v. New York, 399 U.S. 66 (1969); Bloom v. Illinois, 391 U.S. 194 (1968).
127. 114 S. Ct. 1937 (1994).
128. Id. at 1941.
129. This point is made well in King, supra note 61, at 120-22.
130. See id. at 121 (noting that civil and criminal statutes contained different elements, and that Montana legislature intended them as separate and cumulative sanctions). How, exactly, could Montana enforce both laws against a single person on the Kurth Court's view? By bringing a single hybrid civil-criminal case? It seems hard to say that such a virtually unprecedented proceeding could really be required by the Constitution.
131. 114 S. Ct. at 1941; see id. at 1943 ("the same criminal conduct"); id. at 1947 ("the precise conduct").
132. See United States v. Halper, 490 U.S. 435 (1989) (holding that double jeopardy bars civil penalty proceeding filed after criminal conviction).
133. See supra Part I.
134. See Kurth, 114 S. Ct. at 1960 (Scalia, J., dissenting).
135. But see infra note 132.
136. The facts of Kurth itself were rather more complicated than in Halper. In Halper, the civil penalty proceeding was initially filed after the conclusion of the criminal case; in Kurth, civil proceedings were initiated while the criminal suit was pending, and continued after the criminal suit ended. The sequence of events in Halper raised a stronger inference of prosecutorial vindictiveness than in Kurth. Cf. Halper, 490 U.S. at 451 n.10 ("[W]hen the Government already has imposed a criminal penalty and seeks to impose additional punishment in a second proceeding, the Double Jeopardy Clause protects against the possibility that the Government is seeking the second punishment because it is dissatisfied with the sanction obtained in the first proceeding.").
137. 397 U.S. 436 (1970).
138. Cf. Dowling v. United States, 493 U.S. 342, 347-50 (1990). In this case, the Court declined to use Ashe to bar the government from introducing evidence that the defendant had in fact committed an earlier crime, for which he had been previously acquitted. The Court reasoned that the second jury could believe that even though defendant was not guilty of the first crime beyond reasonable doubt he was nonetheless probably guilty, and that this probable guilt was relevant to his guilt beyond reasonable doubt of the second crime. Put a different way, since the government did not need to prove in the second case that the defendant committed the first crime beyond a reasonable doubt, its theory was not logically inconsistent with the earlier acquittal. For similar discussions of the hole in collateral estoppel created by the gap between the reasonable doubt and preponderance standards, see United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361-62 (1984); and One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235 (1972) (per curiam).
139. 395 U.S. 711 (1969).
140. See, e.g., id. (using Due Process Clause to constrain judicial vindictiveness toward defendant who successfully overturns judge's ruling on appeal and then faces stiffer sentence on retrial; judge must specifically justify sentence increase); Wasman v. United States, 468 U.S. 559 (1984) (further elaborating Pearce); cf. United States v. Goodwin, 457 U.S. 368, 372, 384 (1982) (using Due Process Clause to prohibit prosecutorial vindictiveness toward defendant who exercises right to jury trial, but requiring specific proof of vindictiveness); Blackledge v. Perry, 417 U.S. 21 (1974) (using Due Process Clause to constrain prosecutorial vindictiveness toward defendant who exercises right to appeal).
141. Several of these cases are discussed in King, supra note 61, at 123 n.70.
142. 116 S. Ct. 2135 (1996). At the Supreme Court, the Sixth Circuit case was consolidated with a case originating in the Ninth Circuit. See id. at 2138. Because the Sixth Circuit fact pattern presents a clearer example of reverse-Kurth issues, I shall focus on it here.
143. See id. at 2140 n.1.
144. See id. at 2140, 2145 (relying on in rem fiction of Various Items of Personal Property v. United States, 282 U.S. 577, 581 (1931)). But see id. at 2148 n.3 (claiming that Court's ultimate conclusion does not rest on "the long-recognized fiction that a forfeiture in rem punishes only malfeasant property rather than a particular person").
145. See id. at 2140-42 (invoking congressional statute from 1789, and several nineteenth-and twentieth-century Supreme Court cases).
146. See id. at 2151 (Kennedy, J., concurring) ("It is the owner who feels the pain and receives the stigma of the forfeiture, not the property.").
147. See Bennis v. Michigan, 116 S. Ct. 994 (1996) (using in rem gimmick to uphold hardhearted forfeiture of family car against wholly innocent wife of wrongdoing husband).
148. For many more examples of this phenomenon, see Amar, supra note 48, at 1138.
149. See supra text accompanying note 24.
150. United States v. Haskell, 26 F. Cas. 207, 212 (C.C.E.D. Pa. 1823) (No. 15,321).
151. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1781, at 659-60 (Fred B. Rothman & Co. 1991) (1833).
152. See, e.g., Crist v. Bretz, 437 U.S. 28, 32-38 (1978).
153. See Amar, supra note 31, at 658-61.
154. The Court has said that mistrials followed by retrials may be granted in cases of "manifest necessity." See Arizona v. Washington, 434 U.S. 497, 505 (1978). But the Court has hastened to add that "it is manifest that the key word 'necessity' cannot be interpreted literally." Id. at 506. More double jeopardy double talk? For a superb account of the actual judicial standards at work in mistrial cases, see Westen & Drubel, supra note 59, at 85-106.
155. See Westen & Drubel, supra note 59, at 88, 97-99 (distinguishing between harassing and nonharassing indictment dismissals followed by reindictment).
156. See Kepner v. United States, 195 U.S. 100, 134 (1904) (Holmes, J., dissenting) ("[L]ogically and rationally a man cannot be said to be more than once in jeopardy in the same cause, however often he may be tried. The jeopardy is one continuing jeopardy from its beginning to the end of the cause.").
157. Cf. Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in judgment) ("We are not final because we are infallible, but we are infallible only because we are final.").
158. Ordinarily, domestic law should define what counts as an "acquittal" just as it defines what counts as an "offense." And ordinarily, the Double Jeopardy Clause itself should take these domestic law concepts as it finds them. But just as other constitutional clauses can constrain what domestic law can treat as a criminal "offense" - an "offense" for example cannot be ex post facto - so here the Sixth Amendment demands that domestic law must treat certain events as "acquittals." See also infra text accompanying notes 165, 168-69 (describing similar role for Due Process Clause).
159. See Kepner, 195 U.S. at 134 (Holmes, J., dissenting) (quoted supra note 151); see also Palko v. Connecticut, 302 U.S. 319 (1937) (upholding Connecticut continuing jeopardy regime under Due Process Clause). Palko, of course, was decided before the Court held that the Double Jeopardy Clause directly applied against states via Fourteenth Amendment incorporation. See Benton v. Maryland, 395 U.S. 784, 793-96 (1969).
160. See Kepner, 195 U.S. at 135 (Holmes, J., dissenting) (explaining that defendant "no more would be put in jeopardy a second time when retried because of a mistake of law in his favor, than he would be when retried for a mistake that did him harm").
161. My analysis in this paragraph is obviously heavily indebted to Professor Peter Westen's work, which addresses the relevant issues with great penetration and power. I shall thus only summarize his arguments here; readers with any lingering doubts should directly confront Peter Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 MICH. L. REV. 1001, 1008-09, 1055-59 (1980); and Westen & Drubel, supra note 59, at 125-28.
162. Here, too, I stand on the shoulders of Professor Westen, who has thoughtfully addressed the interplay between double jeopardy doctrine and jury nullification theory. See Westen, supra note 156, at 1012-23; Westen & Drubel, supra note 59, at 129-32.
163. Here, I go one step beyond Professor Westen, who seems to overlook this possibility and its larger logical implications. See Westen, supra note 156, at 1017 n.58; Westen & Drubel, supra note 59, at 130 & n.230.
164. See Westen, supra note 156, at 1009; Westen & Drubel, supra note 59, at 127-28.
165. See In re Winship, 397 U.S. 358, 362-64 (1970).
166. See Ashe v. Swenson, 397 U.S. 436 (1970).
167. See supra note 48.
168. See Lockhart v. Fretwell, 506 U.S. 364, 366, 370-71 (1993) (stating that criminal defendant is "not entitled" to "windfall" of incorrect application of law or to "'the luck of a lawless decisionmaker'" when "'the state court make[s] an error in his favor'") (citations omitted); see also United States v. Scott, 437 U.S. 82, 91 n.7 (1978) (allowing appellate reversal of erroneous trial court acquittal, where result is to reinstate jury's guilty verdict). It might be argued that, under Ashe, we immunize an "erroneous" jury finding of fact from reversal by a second jury; why shouldn't we likewise immunize an "erroneous" trial judge ruling of law? The answer is that, in legal contemplation, we have no good reason to systematically prefer the second jury's finding as generally more likely to be "true" or "accurate" than the first jury's finding. Perhaps it is really the second jury that is erroneous in thinking that the first erred. But the entire structure of judicial appellate review gives us good reason to think that an appeals court - typically with more judges and more time for careful legal study of difficult issues - is generally more likely to be legally correct than a trial judge. Thus, we have structured our system so that appellate judges can generally reverse trial judges; but one jury cannot generally reverse another. In addition, as we saw in Part II, Ashe can be defended as creating a worthy and workable incentive structure discouraging prosecutorial vexation and strategic bifurcation. No such vexation exists in the typical case where a prosecutor seeks reversal and retrial to correct an erroneous prodefendant ruling by the trial judge; appeal and retrial here would typically occur because the defendant - over the prosecutor's objection-persuaded the trial judge to commit legal error. If we generally allow retrial after an erroneous conviction (where the state is to blame for the initial error, and retrial can be vexing), we should allow retrial after an erroneous acquittal a fortiori.
169. Note that I do not argue here that every American jurisdiction must or should provide for continuing jeopardy, but only that government should be free to do so if it chooses. Perhaps many legislatures will decide that in certain subcategories or across the board, the appeal and retrial game is not worth the candle. As with my work elsewhere, see supra note 48, here I address only questions of constitutional criminal procedure.
170. While finding the logic of continuing jeopardy compelling, the Office of Legal Policy (OLP) rejected the idea on originalist grounds in 1987. See generally OLP REPORT, supra note 20. The main argument of the OLP was not textual but historical: England at the time of the Founding rejected continuing jeopardy (and so did many later American courts). This argument blurs the key difference between those legal rules that were effectively inscribed in constitutional text, and those that were not. The English cases, I submit, rested on the interaction of two distinct rules: (1) The double jeopardy principle barred a retrial after a true (that is, a suitably error-free and final) acquittal; and (2) domestic English law at the time did not provide for appeals of certain trial court error. Thus, trial court acquittals were suitably error-free and final in the sense that domestic English jurisdictional law chose to endow them with finality. But this second rule of English judicial structure was nowhere locked into the American Constitution; and if the American judicial structure were to depart from the English model, then the first principle - which was inserted into the text of the Double Jeopardy Clause - would interact differently. The Double Jeopardy Clause demands that if a true acquittal occurs, retrial is barred, but it looks to current domestic law, not the law of England in 1789, to determine what should count as a true acquittal. Analogously, we might ask whether double jeopardy today applies to RICO offenses. An OLP-like approach might lead us into the following absurdity: Since old England (and early America) did not view RICO as an offense, double jeopardy does not apply. The correct approach, of course, is to see two distinct rules interacting 200 years ago: (1) The double jeopardy principle applied to all criminal offenses; and (2) domestic law at the time did not make RICO an offense. Only the first principle was inscribed into the Double Jeopardy Clause. The Clause demands that if RICO is a criminal offense, retrial is barred; but it looks to current domestic law, not the law of England in 1789, to determine what should count as an offense. See supra text accompanying notes 51-62. To put the point one final way, recall that England does not generally allow a defendant to be retried after he successfully appeals his conviction. The current American rule, of course, ordinarily permits retrial after an appellate court reverses a conviction tainted by legal error. But, as we have seen, this retrial is permissible only because it simply continues the initial jeopardy, not because defendant somehow "waives" his double jeopardy rights. If retrial after erroneous conviction is allowed, so must be retrial after erroneous acquittal: The formal rules of the Double Jeopardy Clause are symmetric between acquittals and convictions. (Due process is, of course, asymmetric, and protects acquittals more; but there is no strong reason to specifically protect legally erroneous acquittals.) England, in short, cannot be our guide here because its domestic judicial structure sharply departs from America's, and nothing in the Double Jeopardy Clause freezes in place England's domestic jurisdictional rules for appeals. Cf. United States v. DiFrancesco, 449 U.S. 117 (1980) (allowing appellate court to increase sentence imposed by trial court where domestic law authorizes such appeals, and paying no heed to whether English appellate courts in 1789 had such power as matter of domestic law).
171. See Amar, supra note 31, at 685-86.
172. Yet again, I echo Professor Westen. See Westen & Drubel, supra note 59, at 129-32 (deriving this right of criminal juries from series of doctrinal rules concerning directed verdicts, special verdicts, verdict inconsistency, and collateral estoppel); Westen, supra note 156, at 1012-23 (providing similar derivation).
173. See Green v. United States, 355 U.S. 184, 188 (1957); Westen & Drubel, supra note 59, at 85-106.
174. Alternatively, we could see acquittals by penalty as penumbral double jeopardy "principles" designed to prevent purposeful evasion of the core double jeopardy rule: A prosecutor who intentionally derails a case she is about to lose should stand in no better position than a prosecutor who in fact does lose (and is thus barred from retrial by the Double Jeopardy Clause's formal rule of autrefois acquit). The labeling issue here - are acquittals by penalty double jeopardy or due process issues? - parallels the issues discussed supra Part II.
175. Thus, my analysis of the Double Jeopardy Clause complements my analysis of other constitutional criminal procedure clauses. Elsewhere I have argued for alternative remedies to various kinds of exclusionary rules - under the Fourth Amendment, the Fifth Amendment Self-Incrimination Clause, and the Sixth Amendment Speedy Trial Clause - that needlessly free the guilty. See AMAR, supra note 48.
176. Cf. Chapman v. California, 386 U.S. 18, 22 (1967) (propounding harmless error rule).
177. This type of sanction is of course quite common today.
178. In theory, this is what happens when a trial judge strikes from the record, and instructs the jury to ignore, counsel's improper question and any answer it elicited.
179. See Westen & Drubel, supra note 59, at 102 nn.114 & 116, 104-05 (discussing this remedial possibility).
180. Cf. Rosemary Nidiry, Note, Restraining Adversarial Excess in Closing Argument, 96 COLUM. L. REV. 1299, 1319-23 (1996) (discussing tit-for-tat "invited response" doctrine).
181. In fact, this is apparently current doctrine's approach to certain types of mistrials. See Westen & Drubel, supra note 59, at 101-02, 106. Once we see this theoretical possibility, it is conceptually possible to argue that the most apt remedy in a particular case would be a requirement that the penalized party win three times in a row, or four, or more. Query whether this penalty could ever be imposed against a defendant for his low blows, or the low blows of his counsel. A judge could never award a victory by penalty to the government - such a ruling would be tantamount to a directed verdict and would violate the Sixth Amendment right of a jury to acquit against the evidence. But even accepting this asymmetry between the government and the defendant, must we also say that penalties less severe than victory by default can never be assessed against defendants who cheat in the adjudication game?
182. See supra note 169.
183. See Arthur Allen Leff, Law and, 87 YALE L.J. 989, 998-1005 (1978) (describing "Ludic Metaphor" and "The Game of the Trial" and concluding that if Leff's fictional "Trial is not a game, it is not not a game either").
184. See Akhil Reed Amar, Hits, Runs, Trial Error: How Courts Let Legal Games Hide the Truth, WASH. POST, Apr. 16, 1995, at C1 ("A criminal trial is not a football game, even if it stars O.J. Simpson.").
185. Playing by the rules of constitutional interpretation requires fidelity to constitutional text (among other things), but there are different ways that one can be faithful to a text. This Essay has featured three slightly different approaches. In Part I, fidelity to the poetic phrase "life or limb" called for literary sensitivity; in Part II, fidelity to the mathematical word "same" and the distinctly legal word "offense" called for a more legalistic and logic-chopping analytic framework; and in Part III, fidelity to the game metaphor at the root of the word "jeopardy" invited comparisons and contrasts with other familiar games.