Editing Double jeopardy (section)

=== United States ===
In the United States, the protection in [[common law]] against double jeopardy is maintained through the [[Double Jeopardy Clause]] of the [[Fifth Amendment to the United States Constitution|Fifth Amendment to the Constitution]], which provides:

{{blockquote|...&nbsp;nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;&nbsp;...<ref name="fifth amendment double jeopardy">{{cite book |last=Harper |first=Timothy |title=The Complete Idiot's Guide to the U.S. Constitution |publisher=Penguin Group |date=2 October 2007 |page=109 |isbn=978-1-59257-627-2 |quote= However, the Fifth Amendment contains several other important provisions for protecting your rights. It is the source of the double jeopardy doctrine, which prevents authorities from trying a person twice for the same crime&nbsp;...}}</ref>}}

Conversely, double jeopardy comes with a key exception. Under the [[dual sovereignty doctrine]], multiple sovereigns can indict a defendant for the same crime. The federal and state governments can have overlapping criminal laws, so a criminal offender may be convicted in individual states and federal courts for exactly the same crime or for different crimes arising out of the same facts.<ref>''[[Gamble v. United States]]'', {{Ussc|587||2019|docket=17-646}}.</ref> However, in 2016, the [[Supreme Court of the United States|Supreme Court]] held in ''[[Puerto Rico v. Sanchez Valle]]'' that [[Puerto Rico]] is not a separate sovereign for purposes of the Double Jeopardy Clause.<ref>''[[Puerto Rico v. Sanchez Valle]]'', {{Ussc|579||2016|docket=15-108}}.</ref> The dual sovereignty doctrine has been the subject of substantial scholarly criticism.{{Specify|reason=What kind of criticism? This sentence is saying that there is criticism of the dual sovereignty doctrine, without elaborating on what that criticism is.|date=May 2024}}<ref>Adler, Adam J. "Dual Sovereignty, Due Process, and Duplicative Punishment: A New Solution to an Old Problem". ''Yale Law Journal''. N.p., Nov. 2014. Web. 15 November 2015. [http://www.yalelawjournal.org/note/dual-sovereignty-due-process-and-duplicative-punishment-a-new-solution-to-an-old-problem]</ref>

As described by the U.S. Supreme Court in ''[[United States v. Ball|Ball v. United States]]'' 163 U.S. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial".<ref name=USvBall>{{cite court|litigants=United States v. Ball |vol=163 |opinion= 662 |date=1896 |url=https://supreme.justia.com/cases/federal/us/163/662/case.html |access-date=2 May 2018 }}</ref> <!-- Included this quote so that the reader will know why it's called "double jeopardy" --> The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment.<ref>''[[North Carolina v. Pearce]]'', {{Ussc|395|711|1969}}.</ref> Jeopardy "attaches" when the jury is impanelled, the first witness is sworn, or a plea is accepted.<ref>''[[Crist v. Bretz]]'', {{Ussc|437|28|1978}}.</ref>

==== Prosecution after acquittal ====

With two exceptions, the government is not permitted to appeal or retry the defendant once jeopardy attaches to a trial unless the case does not conclude. Conditions which constitute "conclusion" of a case include

* After the entry of an acquittal, whether:
** an acquittal by jury verdict
** a [[directed verdict]] before the case is submitted to the jury,<ref>''[[Fong Foo v. United States]]'', {{Ussc|369|141|1962}}.</ref><ref>''[[Sanabria v. United States]]'', {{Ussc|437|54|1978}}.</ref>
** a [[directed verdict]] after a [[deadlocked jury]],<ref>''[[United States v. Martin Linen Supply Co.]]'', {{Ussc|430|564|1977}}.</ref>
** an appellate reversal for sufficiency (except by direct appeal to a higher appellate court),<ref>''[[Burks v. United States]]'', {{Ussc|437|1|1978}}.</ref> or
** an "implied acquittal" via conviction of a [[lesser included offence]].<ref>''[[Green v. United States]]'', {{Ussc|355|184|1957}}.</ref>
* re-litigating against the same defence a fact necessarily found by the jury in a prior acquittal,<ref>''[[Ashe v. Swenson]]'', {{Ussc|397|436|1970}}.</ref> even if the jury [[Hung jury|hung]] on other counts.<ref>''[[Yeager v. United States]]'', {{Ussc|557|110|2009}}.</ref> In such a situation, the government is barred by [[collateral estoppel]].

In these cases, the trial is concluded and the prosecution is precluded from appealing or retrying the defendant over the offence to which they were acquitted.

This principle does not prevent the government from appealing a pre-trial motion to dismiss<ref>''[[Serfass v. United States]]'', {{Ussc|420|377|1973}}.</ref> or other non-merits dismissal,<ref>''[[United States v. Scott]],'' {{Ussc|437|82|1978}}.</ref> or a directed verdict after a jury conviction,<ref>''[[Wilson v. United States]]'', {{Ussc|420|332|1975}}.</ref> nor does it prevent the trial judge from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has so provided by rule or statute.<ref>''[[Smith v. Massachusetts]]'', {{Ussc|543|462|2005}}.</ref> Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency,<ref>''[[Ball v. United States]]'', {{Ussc|163|662|1896}}.</ref> including ''[[habeas corpus]]'',<ref>''[[United States v. Tateo]]'', {{Ussc|377|463|1964}}.</ref> or "thirteenth juror" appellate reversals notwithstanding sufficiency<ref>''[[Tibbs v. Florida]]'', {{Ussc|457|31|1982}}.</ref> on the principle that jeopardy has not "terminated".

The dual sovereignty doctrine allows a federal prosecution of an offence to proceed regardless of a previous state prosecution for that same offence<ref>''[[Abbate v. United States]]'', {{Ussc|359|187|1959}}.</ref> and vice versa<ref>''[[Bartkus v. Illinois]]'', {{Ussc|359|121|1959}}.</ref> because "an act denounced as a crime by both national and state sovereignties is an offence against the peace and dignity of both and may be punished by each".<ref>''[[United States v. Lanza]]'', {{Ussc|260|377|1922}}.</ref> The doctrine is solidly entrenched in the law, but there has been a traditional reluctance in the federal executive branch to gratuitously wield the power it grants, due to public opinion being generally hostile to such action.<ref>Wayne R. LaFave, et al., ''Criminal Procedure'' § 25.5(a) (4th ed. 2004).</ref>

==== Exceptions ====
There are two exceptions to bans on retrying defendants. If a defendant bribed a judge into acquitting him or her, the defendant was not in jeopardy and can be retried.<ref>{{Cite court|litigants=[[Aleman v. Judges of the Circuit Court of Cook County]]|vol=138|reporter=F.3d|opinion=302|court=7th Cir.|date=1998|url=https://scholar.google.com/scholar_case?case=12470920553407736097&hl=en&as_sdt=80000006|access-date=7 September 2019}}</ref> A member of the armed forces can be retried by [[court-martial]] in a military court, even if he or she has been previously acquitted by a civilian court.<ref>{{cite web|author=SBM Blog |url=http://sbmblog.typepad.com/sbm-blog/2012/02/double-jeopardy-and-the-military-a-lurid-case-in-point.html |title=Double Jeopardy and the Military: A Sensational Case in Point – SBM Blog |publisher=Sbmblog.typepad.com |date=14 November 2011 |access-date=14 May 2012}}</ref> This exception was used to prosecute Timothy Hennis for the [[Eastburn family murders]] after his previous trial acquitted him.<ref>{{cite web|url=https://edition.cnn.com/2014/07/18/us/death-row-stories-hennis/index.html|title=Triple murder suspect goes from guilty to innocent and back to guilty|publisher=CNN|date=18 July 2014|last=Patterson|first=Thom}}</ref>

An individual can be prosecuted by both the United States and an [[Tribal sovereignty in the United States#Tribal state relations: sovereign within a sovereign|Indian tribe]] for the same acts that constituted crimes in both jurisdictions; it was established by the Supreme Court in ''[[United States v. Lara]]'' that as the two are separate sovereigns, prosecuting a crime under both tribal and federal law does not attach double jeopardy.<ref>{{Cite web|url=https://www.justice.gov/osg/brief/united-states-v-lara-brief-merits|title=United States v. Lara – Brief (Merits)|date=21 October 2014|website=justice.gov|access-date=5 March 2020}}</ref>

==== Multiple punishment, including prosecution after conviction ====

In ''[[Blockburger v. United States]]'' (1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not.<ref>''[[Blockburger v. United States]]'', {{Ussc|284|299|1932}} See, e.g., ''[[Brown v. Ohio]]'', {{Ussc|432|161|1977}}.</ref> ''Blockburger'' is the default rule, unless the governing statute legislatively intends to depart; for example, [[Continuing Criminal Enterprise]] (CCE) may be punished separately from its predicates,<ref>''[[Garrett v. United States]]'', {{Ussc|471|773|1985}}.</ref><ref>''[[Rutledge v. United States]],'' {{Ussc|517|292|1996}}.</ref> as can conspiracy.<ref>''[[United States v. Felix]]'', {{Ussc|503|378|1992}}.</ref>

The ''Blockburger'' test, originally developed in the multiple punishments context, is also the test for prosecution after conviction.<ref>''[[Missouri v. Hunter]]'', {{Ussc|459|359|1983}}.</ref> In ''[[Grady v. Corbin]]'' (1990), the Court held that a double jeopardy violation could lie even where the ''Blockburger'' test was not satisfied,<ref>''[[Grady v. Corbin]]'', {{Ussc|495|508|1990}}.</ref> but ''Grady'' was later distinguished in ''[[United States v. Felix]]'' (1992), when the court reverted to the ''Blockburger'' test without completely dismissing the ''Grady'' interpretation. The court eventually overruled ''Grady'' in ''[[United States v. Dixon]]'' (1993).<ref>''[[United States v. Dixon]]'', {{Ussc|509|688|1993}}.</ref>

==== Prosecution after mistrial ====

The rule for [[mistrial]]s depends upon who sought the mistrial. If the defendant moves for a mistrial, there is no bar to retrial, unless the prosecutor acted in "bad faith", i.e. goaded the defendant into moving for a mistrial because the government specifically wanted a mistrial.<ref>''[[Oregon v. Kennedy]]'', {{Ussc|456|667|1982}}.</ref> If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial.<ref>''[[Arizona v. Washington]]'', {{Ussc|434|497|1978}}.</ref> The same standard governs mistrials granted [[sua sponte]].

Retrials are not common, due to the legal expenses to the government. However, in the mid-1980s Georgia antique dealer [[James Arthur Williams]] was tried a record four times for murder over the [[shooting of Danny Hansford]], and after three mistrials was finally acquitted on the grounds of self-defence.<ref>{{Cite web|url=https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4195|title=James Williams – National Registry of Exonerations|website=law.umich.edu|access-date=3 January 2020}}</ref> The case is recounted in the book ''[[Midnight in the Garden of Good and Evil]],''<ref>{{Cite web|url=https://www.savannahmagazine.com/25-years-after-midnight/|title=25 Years After Midnight|last=Domet|first=Sarah|date=13 September 2019|website=Savannah Magazine|access-date=3 January 2020|archive-date=6 October 2019|archive-url=https://web.archive.org/web/20191006153644/https://www.savannahmagazine.com/25-years-after-midnight/|url-status=dead}}</ref> which was [[Midnight in the Garden of Good and Evil (film)|adapted into a film]] directed by [[Clint Eastwood]] (the movie combines the four trials into one).<ref>{{Cite web|url=https://www.rogerebert.com/reviews/midnight-in-the-garden-of-good-and-evil-1997|title=Midnight In The Garden Of Good And Evil movie review (1997) {{!}} Roger Ebert|last=Ebert|first=Roger|website=rogerebert.com|access-date=3 January 2020}}</ref>