Can You Be Tried Again for the Same Crime if Your Original Conviction Was Vacated

Fifth Subpoena:

No person shall be held to answer for a upper-case letter, or otherwise infamous crime, unless on a presentment or indictment of a Chiliad Jury, except in cases arising in the land or naval forces, or in the Militia, when in bodily service in time of War or public danger; nor shall any person exist subject for the aforementioned offence to exist twice put in jeopardy of life or limb; nor shall be compelled in any criminal instance to be a witness confronting himself, nor exist deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public employ, without simply compensation.

A basic purpose of the Double Jeopardy Clause is to protect a defendant "confronting a second prosecution for the same offense afterwards conviction." 1 It is "settled" that "no man tin can be twice lawfully punished for the aforementioned criminal offense." two Of class, the defendant'due south interest in finality, which informs much of double jeopardy jurisprudence, is quite adulterate following conviction, and he will about likely appeal, whereas the prosecution will ordinarily be content with its judgment.iii The situation involving reprosecution usually arises, therefore, only in the context of successful defense appeals and controversies over punishment.

Reprosecution After Reversal on Defendant's Appeal

More often than not, a accused who is successful in having his conviction set aside on appeal may exist tried once more for the same offense, the supposition being made in the beginning instance on the subject that, by appealing, a accused has "waived" his objection to farther prosecution by challenging the original conviction.4 Although it has characterized the "waiver" theory every bit "totally unsound and indefensible," 5 the Court has been hesitant in formulating a new theory in maintaining the exercise.6

An exception to full application of the retrial rule exists, nonetheless, when defendant on trial for an law-breaking is convicted of a lesser offense and succeeds in having that conviction ready aside. Thus, in Green v. The states ,7 the defendant had been placed on trial for start degree murder merely convicted of 2d degree murder; the Courtroom held that, following reversal of that confidence, he could non exist tried again for first degree murder, although he certainly could be for 2nd degree murder, on the theory that the commencement verdict was an implicit acquittal of the first degree murder charge.8 Even though the Court idea the jury's action in the starting time trial was conspicuously erroneous, the Double Jeopardy Clause required that the jury's implicit acquittal be respected.9

Still another exception arises out of appellate reversals grounded on evidentiary insufficiency. Thus, in Burks v. U.s. ,10 the appellate courtroom fix aside the defendant'southward confidence on the ground that the prosecution had failed to rebut accused's proof of insanity. In directing that the defendant could not be retried, the Court observed that if the trial court "had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered and, of class, petitioner could not be retried for the same offense. . . . [I]t should make no departure that the reviewing court, rather than the trial court, adamant the testify to be bereft." 11 The policy underlying the clause of not allowing the prosecution to brand repeated efforts to captive forecloses giving the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. On the other hand, if a reviewing court reverses a jury conviction because of its disagreement on the weight rather than the sufficiency of the testify, retrial is permitted; the appellate courtroom's conclusion does not mean that amortization was the only proper class, hence the deference required for acquittals is not merited.12 Besides, the Burks dominion does not bar reprosecution post-obit a reversal based on erroneous admission of show, fifty-fifty if the remaining properly admitted evidence would be insufficient to convict.13

Footnotes

1

Due north Carolina v. Pearce, 395 U.S. 711, 717 (1969).

2

Ex parte Lange, 85 U.Southward. (18 Wall.) 163 (1874).

3

A prosecutor dissatisfied with the punishment imposed upon the first conviction might seek another trial in order to obtain a greater sentence. Cf. Ciucci v. Illinois, 356 U.S. 571 (1958) (nether Due Process Clause, Double Jeopardy Clause not then applying to states).

4

U.s.a. v. Brawl, 163 U.Southward. 662 (1896). The English rule precluded a new trial in these circumstances, and circuit Justice Story adopted that view. United states v. Gilbert, 25 F. Cas. 1287 (No. 15204) (C.C.D.Mass. 1834) . The history is briefly surveyed in Justice Frankfurter'due south dissent in Green five. Usa, 355 U.S. 184, 200–05 (1957).

5

Green v. United states of america, 355 U.S. 184, 197 (1957). The more recent cases go along to refuse a "waiver" theory. E.thou., United States v. Dinitz, 424 U.Due south. 600, 609 n.11 (1976); United States 5. Scott, 437 U.Due south. 82, 99 (1978).

6

Justice Holmes, dissenting in Kepner v. United States, 195 U.Due south. 100, 134 (1904), rejected the "waiver" theory and propounded a theory of "continuing jeopardy," which besides continues to be rejected. Run into discussion, supra. In some cases, a concept of "election" by the accused has been suggested, United states 5. Scott, 437 U.S. 82, 93 (1978); Jeffers 5. Usa, 432 U.S. 137, 152–54 (1977), just it is non clear how this formulation might differ from "waiver." Chief Justice Burger has suggested that "probably a more satisfactory explanation" for permissibility of retrial in this situation "lies in analysis of the corresponding interests involved," Breed v. Jones, 421 U.Southward. 519, 533–35 (1975), and a determination that on residual the interests of both prosecution and defense are well served by the rule. See United States v. Tateo, 377 U.Southward. 463, 466 (1964); Tibbs v. Florida, 457 U.S. 31, 39–40 (1982).

vii

355 U.S. 184 (1957).

eight

The decision necessarily overruled Trono v. United States, 199 U.S. 521 (1905), although the Court purported to distinguish the decision. Greenish 5. U.s., 355 U.S. 184, 194–97 (1957). See also Brantley v. Georgia, 217 U.S. 284 (1910) (no due procedure violation where defendant is bedevilled of higher offense on second trial).

9

See also Toll 5. Georgia, 398 U.S. 323 (1970). The accused was tried for murder and was convicted of involuntary manslaughter. He obtained a reversal, was over again tried for murder, and again convicted of involuntary manslaughter. Acknowledging that, later on reversal, Price could have been tried for involuntary manslaughter, the Court however reversed the second conviction because he had been subjected to the hazard of twice being tried for murder, in violation of the Double Jeopardy Clause, and the outcome on the jury of the murder charge beingness pressed could take prejudiced him to the extent of the second conviction. Simply cf. Morris v. Mathews, 475 U.Southward. 237 (1986) (inadequate showing of prejudice resulting from reducing jeopardy-barred confidence for aggravated murder to non-jeopardy-barred conviction for get-go degree murder). "To prevail in a case similar this, the defendant must show that, but for the improper inclusion of the jeopardy-barred charge, the result of the proceeding probably would take been unlike." Id. at 247.

x

437 U.S. i (1978).

11

Id. at 10–11. Meet likewise Greene v. Massey, 437 U.S. 19 (1978) (remanding for determination whether appellate majority had reversed for insufficient prove or whether some of the majority had based conclusion on trial error); Hudson v. Louisiana, 450 U.Southward. 40 (1981) (Burks applies where appellate court finds some just bereft testify adduced, not only where it finds no evidence). Burks was distinguished in Justices of Boston Mun. Courtroom v. Lydon, 466 U.Due south. 294 (1984), which held that a accused who had elected to undergo a demote trial with no appellate review but with the right of trial de novo before a jury (and with appellate review available) could not bar trial de novo and reverse his demote trial confidence by asserting that the conviction had been based on insufficient evidence. The two-tiered system in upshot gave the accused two chances at acquittal; under those circumstances jeopardy was non terminated by completion of the commencement entirely optional stage.

12

Tibbs v. Florida, 457 U.S. 31 (1982). The decision was 5-to-4, the dissent arguing that weight and insufficiency determinations should be given identical Double Jeopardy Clause treatment. Id. at 47 (Justices White, Brennan, Marshall, and Blackmun).

xiii

Lockhart v. Nelson, 488 U.S. 33 (1988) (land may reprosecute under habitual offender statute fifty-fifty though evidence of a prior conviction was improperly admitted; at retrial, state may attempt to constitute other prior convictions as to which no proof was offered at prior trial).

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Source: https://www.law.cornell.edu/constitution-conan/amendment-5/reprosecution-following-conviction

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