Editing Double jeopardy (section)

==== 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>