Double Jeopardy Clause

The Double Jeopardy Clause of the Fifth Amendment protects against second prosecution for same offense after acquittal or conviction, and against multiple punishments for same offense.  It applies to the states through the Fourteenth Amendment.

Further Reading:

WordNet 3.6:
(n) double jeopardy the prosecution of a defendant for a criminal offense for which he has already been tried; prohibited in the fifth amendment to the United States Constitution

Brown v. Ohio, 432 U.S. 161 (1977):

The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” It has long been understood that separate statutory crimes need not be identical—either in constituent elements or in actual proof—in order to be the same within the meaning of the constitutional prohibition. 1 J. Bishop, New Criminal Law § 1051 (8th ed. 1892); Comment, Twice in Jeopardy, 75 Yale L. J. 262, 268-269 (1965). The principal question in this case is whether auto theft and joyriding, a greater and lesser included offense under Ohio law, constitute the “same offense” under the Double Jeopardy Clause.

Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v.Wilson, 420 U.S. 332, 339-340 (1975), the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.

The Double Jeopardy Clause “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce,395 U.S. 711, 717 (1969) (footnotes omitted). Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. See Gore v. United States,357 U.S. 386(1958); Bell v. United States,349 U.S. 81 (1955); Ex parte Lange,18 Wall. 163 (1874). Where successive prosecutions are at stake, the guarantee serves “a constitutional policy of finality for the defendant’s benefit.” United States v. Jorn,400 U.S. 470, 479 (1971) (plurality opinion). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, seeAshe v. Swenson,397 U.S. 436 (1970); cf. United States v. Martin Linen Supply Co.,430 U.S. 564 (1977), and from attempts to secure additional punishment after a prior conviction and sentence, see Green v. United States,355 U.S. 184, 187-188 (1957); cf. North Carolina v. Pearce, supra.

The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304 (1932):

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . .”

This test emphasizes the elements of the two crimes. “If each requires proof of a fact that the other does not, the Blockburgertest is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . .” Iannelli v. United States,420 U.S. 770, 785 n. 17 (1975).

If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen,131 U.S. 176, 187-188 (1889); cf.Gavieres v. United States,220 U.S. 338 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings. Unless “each statute requires proof of an additional fact which the other does not,” Morey v. Commonwealth, 108 Mass. 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.

We are mindful that the Ohio courts “have the final authority to interpret . . . that State’s legislation.” Garner v. Louisiana,368U.S. 157, 169 (1961). Here the Ohio Court of Appeals has authoritatively defined the elements of the two Ohio crimes: Joyriding consists of taking or operating a vehicle without the owner’s consent, and auto theft consists of joyriding with the intent permanently to deprive the owner of possession. App. 22. Joyriding is the lesser included offense. The prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft; the prosecutor who has established auto theft necessarily has established joyriding as well.

Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by that court, constitute “the same statutory offense” within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that “each [statute] requires proof of a fact which the other does not.” 284 U. S., at 304. As is invariably true of a greater and lesser included offense, the lesser offense—joyriding—requires no proof beyond that which is required for conviction of the greater—auto theft. The greater offense is therefore by definition the “same” for purposes of double jeopardy as any lesser offense included in it.

This conclusion merely restates what has been this Court’s understanding of the Double Jeopardy Clause at least since In re Nielsen was decided in 1889. In that case the Court endorsed the rule that

where . . . a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense. 131 U. S., at 188.

Although in this formulation the conviction of the greater precedes the conviction of the lesser, the opinion makes it clear that the sequence is immaterial. Thus, the Court treated the formulation as just one application of the rule that two offenses are the same unless each requires proof that the other does not. Id., at 188, 190, citing Morey v. Commonwealth, supra, at 434. And as another application of the same rule, the Court cited, 131 U. S., at 190, with approval the decision of Statev. Cooper, 13 N. J. L. 361 (1833), where the New Jersey Supreme Court held that a conviction for arson barred a subsequent felony-murder indictment based on the death of a man killed in the fire. Cf. Waller v. Florida, 397 U.S. 387, 390 (1970). Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.

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