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DOUBLE TAKE:
EVALUATING DOUBLE JEOPARDY REFORM
Kenneth G. Coffin *
P ROLOGUE
In February 1990, Ann Ming found her daughter Julie Hogg’s body hidden behind a bath panel in her Teesside, England home. 1 She had been missing since the previous November. 2 The British gov- ernment charged and indicted William Dunlop with her murder. 3 Following two mistrials in May and October 1991, the Crown Court declared Dunlop “not guilty.” 4 In 1999, while incarcerated for an unrelated offense, Dunlop repeatedly admitted to having murdered Hogg. 5 He confessed to his prison nurse, wrote letters referencing his guilt to friends, and in a child custody proceeding stated, “I have admitted that I was responsible for the death of Julie Hogg. I stood trial at Newcastle Crown Court for her murder and was acquitted. I denied the offence and I accept that I lied.” 6 Barred from re-indicting Dunlop for homicide by the historic common law prohibition on double jeopardy, 7 the Crown prosecution took the “unusual” step of
- Candidate for Juris Doctor, Notre Dame Law School, 2010; B.A., History and Government, The College of William & Mary, 2007. Special thanks to my parents, Joann and Ken Coffin, who continue to serve as my role models and advisers; to my siblings, Kaitlyn and Thomas, for their constant love and support; to Kathleen Donovan, for her tireless editing and encouragement throughout the development of this Note; to Professor Geoffrey Bennett for his invaluable advice and guiding hand; and to the members of the Notre Dame Law Review for their helpful comments and careful editing. 1 See R v. Dunlop [2006] EWCA (Crim) 1354, [9], [2007] 1 All E.R. 593, 597; see also Double Jeopardy Man Admits Guilt , BBC N EWS , Sept. 11, 2006, http://news.bbc.co. uk/2/hi/uk_news/england/5144722.stm. 2 Dunlop , [2006] EWCA (Crim) 1354, [9], [2007] 1 All E.R. 593, 597. 3 Id. 4 Id. 5 Id. 6 Id. 7 See, e.g. , Connelly v. DPP, [1964] A.C. 1254, 1306 (H.L. 1963) (appeal taken from Eng.) (U.K.) (opinion of Lord Morris) (stating that it is a “fundamental princi- ple... that a man is not to be prosecuted twice for the same crime”).
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charging him with perjury. 8 Based on the foregoing evidence, Dunlop was convicted of perjury in 2000 and sentenced to six years in prison.^9 Prior to the passage of the Criminal Justice Act of 2003 10 (CJA), this would have been the end of Dunlop’s story. As in the United States,^11 the principle of double jeopardy previously provided “abso- lute” protection for Dunlop. 12 Regardless of the “truth,” the state would always officially deem Dunlop “not guilty” of Julie Hogg’s mur- der. By virtue of the CJA, however, that all changed. 13 The CJA codi- fied a “new and compelling evidence” exception to the bar against double jeopardy in England and Wales.^14 This major inroad came into force in April 2005 with retrospective application, meaning “every living person ever acquitted of one of the twenty-nine designated seri- ous offences will in principle become eligible for retrial and possible conviction and punishment.” 15 The Crown, following the procedures proscribed by the CJA, applied to the Court of Appeal to quash Dunlop’s acquittal and grant a retrial based on his repeated admis- sions of guilt.^16 Dunlop was a “soft target”^17 for the first application of the CJA’s double jeopardy exception, and the Court of Appeal had little difficulty granting the retrial. 18 Dunlop subsequently pled guilty to murder and was given the mandatory life sentence. 19
8 [2007] All E.R. Rev. [10.8]. 9 Dunlop , [2006] EWCA (Crim) 1354, [9], [2007] 1 All E.R. 593, 597. 10 Criminal Justice Act, 2003, c. 44, §§ 75–97 (U.K.). 11 U.S. C ONST. amend. V (“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb... .”); see also Benton v. Maryland, 395 U.S. 784, 787 (1969) (incorporating the Fifth Amendment against the states through the Fourteenth Amendment). Despite the applicability of the Fifth Amendment to the states, the “dual sovereignty doctrine” allows different states or a state and the federal government to bring successive prosecutions. See Abbate v. United States, 359 U.S. 187, 195 (1959) (allowing a federal prosecution following a state conviction based on the same conduct). 12 Paul Roberts, Justice for All? Two Bad Arguments (And Several Good Suggestions) for Resisting Double Jeopardy Reform , 6 INT ’L J. EVIDENCE & PROOF 197, 198 (2002). 13 Criminal Justice Act, 2003, c. 44, §§ 75–97 (U.K.) (allowing “retrial for serious offenses”). 14 Id. § 78. 15 Roberts, supra note 12, at 199–200. 16 R v. Dunlop [2006] EWCA (Crim) 1354, [2], [2007] 1 All E.R. 593, 595. 17 [2007] All E.R. Rev. [10.8]. 18 Dunlop , [2006] EWCA (Crim) 1354, [45], [2007] 1 All E.R. 593, 604 (“[T]he public would rightly be outraged were the exception to the double jeopardy rule not to be applied in the present case... .”). 19 [2007] All E.R. Rev. [10.11].
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fresh evidence has come to light after an acquittal.” 29 Arguing that “[j]ustice denied is justice derided,” 30 and noting the strain that a clearly false acquittal places upon the integrity of the justice system, the U.K. Parliament swept away centuries of common law consensus and enacted the CJA. Despite the intentionally “radical” nature of the CJA, several juris- dictions have followed the United Kingdom’s lead. 31 Indeed, since 2003 New South Wales, Queensland, and South Australia have passed some variant of the “new and compelling” evidence exception to the double jeopardy rule. 32 Citing the asymmetry between defense and prosecution, these reforms seek to place the victim at the center of the criminal justice system. 33 These reforms throughout the common law world challenge the conventional wisdom that double jeopardy princi- ples provide a bulwark against state oppression, instead portraying them as archaic protections for wrongly acquitted criminals. Global change demands an analysis of current U.S. double jeop- ardy law. While the Fifth Amendment would make change difficult, mere procedural hardship serves as a poor reason to dismiss reform out of hand. Indeed, according to supporters, double jeopardy reform cures an endemic problem in the Anglo-American system of justice. Such a claim deserves a reasoned response. Dunlop’s case offers a valuable chance to evaluate the growing trend towards double jeopardy reform in other common law jurisdictions. As such, this Note will critically evaluate the CJA against the backdrop of double jeopardy jurisprudence in both the United Kingdom and the United States, concluding that these reforms unjustifiably impinge on an important bulwark against the power of the state. Part I briefly traces the history of the bar against double jeopardy through the ratification of the U.S. Constitution. Part II discusses the evolution of double jeopardy jurisprudence in the United States, highlighting the policies underpinning the expansion of the doctrine. Part III describes the development of U.K. double jeopardy law prior to the passage of the CJA. Part IV discusses and refutes the three main justifications for reform. Part V lays out the case against the CJA against the backdrop of Regina v. Dunlop. 34 This Note concludes by emphasizing the liberty
29 Id. at 83. 30 Id. at 3. 31 Cf. Roberts, supra note 12, at 197 n.2 (“The White Paper positively aspires to radicalism... .”). 32 David Hamer, The Expectation of Incorrect Acquittals and the “New and Compelling Evidence” Exception to Double Jeopardy , 2 CRIM. L. R EV. 63, 63 (2009). 33 Id. at 64. 34 [2006] EWCA (Crim) 1354, [2007] 1 All E.R. 593.
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interests at stake in any reform of the double jeopardy doctrine and suggests that current reforms seriously and unjustifiably endanger those interests.
I. THE DOCTRINE OF DOUBLE JEOPARDY THROUGH 178935
While the precise origins of the rule against double jeopardy remain lost to the “mists of time,” 36 the prohibition has existed in some form since “Greek and Roman Times.” 37
A. Origins of Double Jeopardy
While the laws of the various city-states of Ancient Greece dif- fered greatly, by 355 B.C. the Greek orator Demosthenes concluded “the laws forbid the same man to be tried twice on the same issue.” 38 Similarly, since the earliest years of the Roman Republic “an acquittal by a magistrate in a criminal prosecution barred further proceedings of any kind against the accused.” 39 This proscription survived the imperial period, with the Digest of Justinian stating, “[T]he governor must not allow a man to be charged with the same offenses of which he has already been acquitted.” 40 As Professor David Rudstein points out, however, the Roman law against double jeopardy operated quite differently from our modern conception of the doctrine due to the proliferation of private prosecutions. 41 This more limited version of the doctrine attempted to prevent citizens from employing different statutes or legal forms to effect successive prosecutions.
35 This section draws heavily on Professor David Rudstein’s work, particularly for the conclusion that the development of double jeopardy in the common law tracked the centralization of the prosecutorial power in the hands of the King. See generally David S. Rudstein, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy , 14 WM. & M ARY BILL R TS. J. 193 (2005). 36 Michelle Edgely, Truth or Justice? Double Jeopardy Reform for Queensland: Rights in Jeopardy , 7 QUEENSLAND U. T ECH. L. & J UST. J. 108, 111 (2007). For a more thorough overview of the history of double jeopardy law, see Rudstein, supra note 35. 37 Benton v. Maryland, 395 U.S. 784, 795 (1969). 38 Id. at 198 (quoting Demosthenes, Against Leptines , in OLYNTHIACS , P HILIPPICS , MINOR P UBLIC S PEECHES , S PEECH A GAINST L EPTINES , XX § 147, at 589 (J.H. Vince trans., Harvard Univ. Press 1998) (1930)). 39 Id. at 199. 40 DIG. 48.2.7.2 (Ulpian, De Officio Proconsulis 7), in 4 THE D IGEST OF JUSTINIAN 797 (Theodor Mommsen et al. eds., Univ. of Pa. Press 1985) (1870). The Digest also states that “a person cannot be charged on account of the same crime under several statutes.” DIG. 48.2.14 (Paulis, De Officio Proconsulis 2), in id. at 799; see also Rud- stein, supra note 35, at 200. 41 Rudstein, supra note 35, at 200.
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Notably, the expansion of the doctrine tracked the gradual decline of private prosecutions during the course of the seventeenth century. In the years prior to Lord Coke’s famous treatise, “prosecu- tions by the King had begun replacing private prosecutions by appeal as the preferred method of prosecution.” 50 No longer would double jeopardy merely be held up, as it was in Roman times, to prevent mul- tiple prosecutions by a capricious victim. Rather, double jeopardy now stood as a protection against the King. As the government’s prosecutorial power rapidly increased, the doctrine of double jeop- ardy underwent a correspondingly rapid solidification.
B. Double Jeopardy in America Prior to the Fifth Amendment
The prohibition against double jeopardy has been an important component of American law since colonial times. 51 In 1641, the Gen- eral Court of the Massachusetts Bay Colony enacted the Body of Liber- ties, “[t]he first colonial enactment containing an express guarantee against double jeopardy,” which stated that “‘[n]o man shall be twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse.’”^52 Connecticut included a virtually identical proscription against double jeopardy in their Code of 1650. 53 Despite these early advances, no other state statutorily recognized the principle of double jeopardy until after the Revolutionary War. While the Articles of Confederation, much like the Constitution in its original form, made no mention of double jeopardy, at least two state constitutions did. The first, the 1784 Constitution of New Hamp- shire, provided, “No subject shall be liable to be tried, after an acquit- tal, for the same crime or offence.” 54 “Shortly after New Hampshire adopted a constitutional protection against double jeopardy, Penn- sylvania followed suit.”^55 Thus, while there was slightly greater legisla-
50 Rudstein, supra note 35, at 218 (describing the decline in private prosecutions in England). 51 Id. at 221 (“While double jeopardy law continued to develop in England dur- ing the seventeenth century, it began to take root in England’s colonies in North America.”). 52 Id. at 221–22 (quoting MASS. B ODY OF L IBERTIES § 42 (1641)). Only seven years later the colony enacted another code, which included this earlier proscription against double jeopardy and also stated that “‘[e]verie action between partie and partie... shall be briefly and distinctly entered on the Rolles of every Court by the Recorder thereof. That such actions be not afterwards brought againe to the vexation of any man.’” Id. at 222 (quoting MASS. B ODY OF LIBERTIES § 64 (1648)). 53 Christopher Collier, The Common Law and Individual Rights in Connecticut Before the Federal Bill of Rights , 76 CONN. B.J. 1, 9 (2002). 54 N.H. C ONST. OF 1784 , art. I, § XVI. 55 Rudstein, supra note 35, at 223.
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tive recognition of double jeopardy in the colonies, it was still predominantly the job of the courts to enforce and expand the doctrine. Legislative silence aside, the rapidly advancing extension of the double jeopardy principle in England during the seventeenth century governed colonial courts. Colonial cases in Virginia, New York, Con- necticut, Pennsylvania, and South Carolina explicitly recognized the prohibition against double jeopardy. 56 In one Virginia case from 1735, the court recognized the “[m]axim that a man should not be twice put in danger of his life,” though the court concluded that “he had not been in [jeopardy because] the Jury that tried him [had] no Power to Convict him.” 57 In Respublica v. Shaffer , Chief Justice Thomas McKean of the Supreme Court of Pennsylvania instructed a grand jury, “[B]y the law it is declared that no man shall be twice put in jeopardy for the same offence.” 58 As public demand for a bill of rights grew during the ratification debates over the newly minted U.S. Constitution, many called for a double jeopardy clause mirroring those in the New Hampshire and Pennsylvania Constitutions. 59 Indeed, several states attached sug- gested amendments to their ratification documents. Notably, the New York declaration of rights contained in their act of ratification stated that no person ought to be put in jeopardy or punished twice for the same offense, except in the case of impeachment. 60 A special commit- tee appointed by the Maryland ratifying convention recommended a similar amendment. 61 Backed by these declarations, in his June 8 speech to the first Congress in 1789, James Madison proposed a series of amendments to the Constitution, including that “[n]o person shall be subject, except in cases of impeachment, to more than one punish-
56 See, e.g. , Hannaball v. Spalding, 1 Root 86 (Conn. 1783) (refusing to allow a prosecutor to bring a new trial following an acquittal not procured through fraud or malpractice); Steel v. Roach, 1 S.C.L. (1 Bay) 63 (1788) (refusing to allow a prosecu- tor to bring a new trial following an acquittal due to the “hard and rigorous” nature of qui tam actions); see also infra notes 57–58. 57 2 VIRGINIA C OLONIAL D ECISIONS , at B50–51 (R.T. Barton ed., 1909). 58 1 U.S. (1 Dall.) 236, 237 (Pa. 1788); see also Grady v. Corbin, 495 U.S. 508, 529 (1990) (Scalia, J., dissenting) (discussing the common law origins of the Double Jeop- ardy Clause); Rudstein, supra note 35, at 225 (“Chief Justice McKean told the grand jurors that the defendant could not summon witnesses to testify before the grand jury on his behalf, explaining that allowing the putative defendant to call witnesses would turn the grand jury proceeding into a trial, with the grand jury’s decision being tanta- mount to a verdict of acquittal or guilt.”). 59 Rudstein, supra note 35, at 227. 60 Id. at 227–28. 61 Id. at 228–29.
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- The Development of the Blockburger “Same Offense” Test
Perhaps the most important of these early state cases was Morey v. Commonwealth , 69 which established the still-dominant test for what con- stitutes the “same offense” for the purposes of double jeopardy analy- sis.^70 In Morey , the Massachusetts Supreme Court decided whether prior conviction for “lewd and lascivious cohabitation” prohibited prosecution for adultery if based upon the same conduct. 71 The court held that “[a]lthough proof of one particular fact is necessary to a conviction under either of two statutes,... if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either is no bar to prosecution and punishment under the other.”^72 Though the court found that the subsequent prosecution was not barred, 73 this standard represents an important expansion of the double jeopardy doctrine beyond the narrow com- mon law pleas which prohibited simply “prosecution for the same identical act and crime.” 74 In Blockburger v. United States , 75 the Supreme Court adopted this restyled definition of same offense. In Blockburger , based upon a sin- gle sale of illegal drugs, the jury sentenced the defendant to punish- ment under two different sections of the Narcotics Act. 76 As explained by the Court, the first section prohibited “selling any of the forbidden drugs except in or from the original stamped package,” while the second section prohibited selling any of the forbidden drugs “not in pursuance of a written order of the person to whom the drug is sold.”^77 Echoing Morey , the Court concluded that the statute cre- ated two distinct offenses because “[e]ach of the offenses created requires proof of a different element.” 78 The Court explained, “[W]here 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.” 79
69 108 Mass. 433 (1871). 70 Id. at 436. 71 Id. at 433. 72 Id. 73 Id. at 436. 74 4 BLACKSTONE , supra note 49, at *330. 75 284 U.S. 299 (1932). 76 Id. at 303. 77 Id. at 303–04. 78 Id. at 304. 79 Id. ; see also Grady v. Corbin, 495 U.S. 508, 521 n.12 (“Commentators and judges alike have referred to the Blockburger test as a ‘same evidence’ test.”).
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The development of the double jeopardy doctrine under the Fifth Amendment marked an advance beyond the strict formality of the common law pleas. Under the Blockburger test, a conviction or acquittal of one crime bars a later prosecution for a lesser-included offense. 80 For example, an acquittal for murder would bar prosecu- tion for manslaughter. Similarly, albeit more controversially, an acquittal for manslaughter would bar later prosecution for murder. 81 Nonetheless, even after incorporation of the more permissive Morey - Blockburger “same offense” test into constitutional law, the Fifth Amendment’s double jeopardy standard still only applied to the fed- eral government. 82 Thus, while some states (such as Massachusetts) embraced a similarly expansive vision of double jeopardy law, others (such as Connecticut) continued to require identity of crimes. 83 Justice Brennan later attacked this liberalization of the common law plea requirements as in fact too strict to effectuate the policy goals of the Double Jeopardy Clause. 84 In Grady v. Corbin , 85 Justice Brennan argued that “a technical comparison of the elements of the two offenses as required by Blockburger does not protect defendants suffi- ciently from the burdens of multiple trials .” 86 According to Brennan, the Blockburger test, which “was developed ‘in the context of multiple punishments imposed in a single prosecution,’” 87 did not satisfy all of the goals of the doctrine of double jeopardy. 88 Justice Brennan pro-
80 Cf. Harris v. Oklahoma, 433 U.S. 682, 682 (1977) (per curiam) (“When... conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.”). 81 Brown v. Ohio, 432 U.S. 161, 169 (1977) (“Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”); see also McIntyre v. Caspari, 35 F.3d 338, 344 (8th Cir. 1994) (holding that, as first degree tampering was a lesser-included offense to stealing under Missouri law, a conviction for the former barred prosecution for the latter). 82 Palko v. Connecticut, 302 U.S. 319, 328 (1937). 83 See id. at 321–22 (describing how Connecticut allowed a defendant to be recharged and, ultimately, convicted of first-degree murder subsequent to the proce- dural overturn of his conviction for second-degree murder). 84 Grady v. Corbin, 495 U.S. 508, 519–20 (1990) (“[A] strict application of the Blockburger test is not the exclusive means of determining whether a subsequent prose- cution violates the Double Jeopardy Clause.”). 85 495 U.S. at 508. 86 Id. at 520 (emphasis added). 87 Id. at 516 (quoting Garrett v. United States, 471 U.S. 773, 778 (1985)). 88 Id. at 520 (“If Blockburger constituted the entire double jeopardy inquiry in the context of successive prosecutions, the State could try Corbin in four consecutive tri- als... .”).
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throughout the common law world, notably in the United Kingdom, 98 have declined to expand the doctrine to criminal law. But in Ashe v. Swenson , 99 the U.S. Supreme Court recognized criminal collateral estoppel as an expansion of the common law double jeopardy stan- dard. 100 Ashe created a second standard, operating in conjunction with Blockburger , for assessing whether successive prosecutions violate the Double Jeopardy Clause. Foreshadowing Justice Brennan’s con- cerns regarding Blockburger ’s same-elements test, Justice Stewart incor- porated the doctrine of criminal collateral estoppel into the Fifth Amendment. In Ashe , four men were indicted for the armed robbery of a six- person poker game. 101 Although initially charged with one count of armed robbery for each poker player, the petitioner went to trial only on the charge of robbing Donald Knight. 102 Despite testimony from four of the poker players, “the State’s evidence that the petitioner had been one of the robbers was weak.” 103 The jury returned a verdict of “not guilty due to insufficient evidence” and was “not instructed to elaborate upon its verdict.”^104 Six weeks later, petitioner was tried again for the robbery of a different poker player. 105 In the second trial, the government’s “testimony was substantially stronger on the issue of the petitioner’s identity.” 106 Witnesses, previously unable to identify the petitioner, now testified against him. 107 Moreover, the “State further refined its case at the second trial by declining to call one of the participants in the poker game whose identification testi- mony at the first trial had been conspicuously negative.” 108 The jury found the petitioner guilty of armed robbery and sentenced him to thirty-five years in prison. 109
98 DPP v. Humphrys, [1977] A.C. 1 (H.L. 1976) (appeal taken from Eng.) (U.K.) (rejecting the doctrine of criminal collateral estoppel). 99 397 U.S. 436 (1970). 100 Id. at 442–45. 101 Id. at 437–38. 102 Id. at 438. 103 Id. 104 Id. at 439 (internal quotation marks omitted). 105 Id. 106 Id. at 440. 107 Id. (“For example, two witnesses who at the first trial had been wholly unable to identify the petitioner as one of the robbers, now testified that his features, size, and mannerisms matched those of one of their assailants. Another witness who before had identified the petitioner only by his size and actions now also remembered him by the unusual sound of his voice.”). 108 Id. 109 Id. (adding that the Missouri Supreme Court affirmed the conviction).
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Justice Stewart, writing for the court, argued that while “awk- ward,” collateral estoppel “stands for an extremely important princi- ple... that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 110 While collateral estoppel was “first developed in civil litigation,... ‘[i]t cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.’”^111 As such, criminal collateral estoppel “is embodied in the Fifth Amendment guarantee against double jeopardy.” 112
Further, Justice Stewart wrote that Ashe (much like Blockburger ) “is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.” 113 Though most acquittals are “based upon a general verdict,” courts must nonetheless “‘examine the record of a prior proceeding... and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to fore- close.’” 114 After the foregoing analysis, Justice Stewart returned to the facts, stating “the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that Knight had not been a victim of that robbery.” 115 Therefore they must have found the defendant not guilty on the issue of identity. 116 Since the prior jury decided that petitioner was not one of the men who held up the poker game, the same fact could not be relitigated in a subsequent trial.
Both the “same offense” Blockburger test and the Ashe doctrine of collateral estoppel liberalized the doctrine of double jeopardy in order to facilitate the policies underlying the Fifth Amendment, most importantly the protection of the individual against the power of the state. These dual expansions of the common law pleas require a deeper analysis of the policies justifying a liberally construed bar against double jeopardy.
110 Id. at 443. 111 Id. (quoting United States v. Oppenheimer, 242 U.S. 85, 87 (1916)). 112 Id. at 445; see also id. at 443 (noting that it is “‘much too late to suggest that the principle is not fully applicable to a former judgment in a criminal case’” (quoting United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961))). 113 Id. at 444. 114 Id. (quoting Daniel K. Mayers & Fletcher L. Yarbrough, Bis Vexari : New Trials and Successive Prosecutions , 74 HARV. L. R EV. 1, 38–39 (1960)). 115 Id. at 445. 116 Id.
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secure a new trial.” 126 As illustrated by Ashe , given a “second chance” the State will refine its prosecutorial approach. 127 In Ashe , two wit- nesses changed their identification testimony, one witness was removed from the docket, and others who “remembered” the “man- nerisms” of the defendant more clearly came forward to testify. 128 While perhaps all true, witness identification testimony is both highly probative and highly suspect. Second trials allow the government to utilize their superior resources to adjust after their initial defeat and therefore do not necessarily ensure “truth.” At its core, the Fifth Amendment “protects a man who has been acquitted from having to ‘run the gantlet’ a second time.” 129
- Incorporation of the Double Jeopardy Clause
Only five years after Blockburger , Justice Cardozo, writing for a nearly unanimous court, wrote that violation of the principle against double jeopardy by the states did not necessarily “violate those ‘funda- mental principles of liberty and justice which lie at the base of all our civil and political institutions.’” 130 Thus, the Court did not incorpo- rate the Double Jeopardy Clause against the states as a necessary pro- cedure under the Fourteenth Amendment’s Due Process Clause. Despite the policy goals animating double jeopardy jurisprudence, it was still not considered a “fundamental” requirement of due process. In Palko v. Connecticut , the defendant was indicted for first-degree murder, but the jury returned a conviction for only second-degree murder.^131 The prosecution appealed on the basis of wrongly excluded testimony and prejudicial jury instructions. 132 The Connect- icut Supreme Court, on the basis of a state statute permitting prosecu- tion appeals, allowed the retrial of the defendant. 133 At the second trial, the jury convicted the defendant of first-degree murder and sen- tenced him to death.^134 On appeal to the U.S. Supreme Court, the defendant argued that such prosecution violated the Fifth Amend- ment’s Double Jeopardy Clause and the Fourteenth Amendment’s Due Process Clause. Writing for the Court, Justice Cardozo, however,
126 Id. 127 See supra notes 101–09 and accompanying text. 128 See Ashe v. Swenson, 397 U.S. 436, 440 (1970). 129 Id. at 446 (quoting Green , 355 U.S. at 190). 130 Palko v. Connecticut, 302 U.S. 319, 328 (1937) (quoting Hebert v. Louisiana, 272 U.S. 312, 316 (1926)). 131 Id. at 321. 132 Id. 133 Id. 134 Id. at 321–22.
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reasoned that while certain provisions of the Bill of Rights “have been found to be implicit in the concept of ordered liberty,” the Fifth Amendment’s double jeopardy guarantee is not. 135 He continued, stating, “Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without [double jeopardy protections].” 136 Further, under Palko , only if double jeopardy subjected a defendant to “hardship so acute and shocking that our polity will not endure it” could that defendant rely upon the Due Process Clause of the Fourteenth Amendment for protection.^137 The Supreme Court changed tack in Benton v. Maryland , 138 decid- ing that the Double Jeopardy Clause represented a “fundamental” component of American justice. 139 In Benton , the petitioner was tried in Maryland for burglary and larceny. While the jury found him not guilty of larceny, they sentenced him to ten years in prison on the burglary count.^140 Due to a recent Maryland Court of Appeals case regarding oath procedure, 141 the petitioner was “given the option of demanding re-indictment and retrial.” 142 He chose to have his convic- tion set aside and was reindicted for both larceny and burglary. 143 The petitioner objected to the larceny count on double jeopardy grounds, but the court denied his motion to dismiss. 144 At the second trial, the jury found the petitioner guilty of both crimes and sentenced him to fifteen years’ imprisonment on the burglary charge and five years’ imprisonment on the larceny charge. 145 Rejecting Justice Cardozo’s “acute and shocking” standard, Jus- tice Marshall asked if the protections of the Double Jeopardy Clause were “‘fundamental to the American scheme of justice.’” 146 Finding that “the double jeopardy prohibition... represents a fundamental ideal in our constitutional heritage,” the Court held that it “should
135 Id. at 324–25 & n.2. 136 Id. at 325. 137 Id. at 328. 138 395 U.S. 784 (1969). 139 Id. at 794. 140 Id. at 785. 141 Id. (“In Schowgurow the Maryland Court of Appeals struck down a section of the state constitution which required jurors to swear their belief in the existence of God.” (citing Schowgurow v. State, 213 A.2d 475 (Md. 1965))). 142 Id. at 786. 143 Id. 144 Id. 145 Id. 146 Id. at 794 (quoting Duncan v. Louisiana, 391 U.S. 145, 149 (1968)).
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quish or limit such a right seriously impinges upon personal liberty, irrespective of the gains achieved. In expanding the doctrine, the American judiciary has succinctly elucidated the necessity for a broad prohibition against double jeopardy.
III. D OUBLE JEOPARDY IN THE U.K. BEFORE THE CJA
Despite developing from the same point, double jeopardy juris- prudence in the United States and United Kingdom looked quite dif- ferent, even before the passage of the CJA.
A. Searching for an English Blockburger
While not required to interpret the vagaries of a constitutional amendment, U.K. courts nonetheless had to grapple with defining the extent of the “maxim” prohibiting double jeopardy. For example, in King v. Vandercomb^155 (later cited in Dixon ), the Court confronted the same difficulty in defining “same offense” that was later faced by the Morey and Blockburger courts. In Vandercomb , the government abandoned, midtrial, the prosecu- tion of the defendant for burglary by breaking and entering and steal- ing goods. 156 The government then brought a second prosecution, this time charging burglary by breaking and entering with intent to steal. 157 The King’s Bench allowed the second prosecution because “these two offences are so distinct in their nature, that evidence of one of them will not support an indictment for the other.” 158 While this sounds like Blockburger , the court’s final holding “is demonstrably not the Blockburger test.”^159 The court, referring to confusing earlier pre- cedent, 160 stated, “These cases establish the principle, that unless the first indictment were such as the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal of the first indictment can be no bar to the second.” 161 First, this test refers only to acquittals. Second, the order of the prosecu- tions is extremely important. Under Blockburger , prosecution for a lesser-included offense precludes later prosecution for the more seri- ous crime. Under Vandercomb , “if a greater offense is prosecuted first, no bar would arise to a necessarily included offense because the
155 (1796) 168 Eng. Rep. 455 (K.B). 156 Id. at 457. 157 Id. 158 Id. at 460 (citations omitted). 159 GEORGE C. T HOMAS III, D OUBLE JEOPARDY 99 (1998). 160 Id. at 99–100. 161 Vandercomb , 168 Eng. Rep. at 461 (emphasis added).
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defendant could not have been convicted under the first indictment on proof of the lesser offense.” 162 In modern English jurisprudence, the extent of the offenses cov- ered by the double jeopardy prohibition remains unclear, even though nearly all sources cite one case. 163 The U.K. practice of issu- ing seriatim opinions has led to the current confusion. Two respected jurists, Lords Morris and Devlin issued highly influential concurring opinions in Connelly v. Director of Public Prosecutions.^164 In Connelly , the appellant participated in an armed robbery during which one robber shot and killed a man. 165 Those events gave “rise to two charges against the appellant—murder and robbery.” 166 The appellant was tried and convicted of murder, but due to a procedural error the Court of Criminal Appeal quashed the conviction. 167 The question before the Connelly court was whether he could then be tried for the robbery in a subsequent retrial. 168
- Lord Morris and the Hornbooks
Echoing Vandercomb , Lord Morris first noted that “[t]he appellant could not on the first indictment have been found guilty of the offence of robbery with aggravation.” 169 Accordingly, while the appel- lant could “validly assert that he ha[d] been acquitted of the charge of murder—with the consequential result that he ha[d] also been acquit- ted of manslaughter,” the issues posed by the robbery had not been resolved.^170 As a result, the plea of autrefois acquit was properly denied. Lord Morris then dealt with the issue of judicial discretion, a
162 THOMAS , supra note 159, at 99. 163 Connelly v. DPP, [1964] A.C. 1254 (H.L. 1963) (appeal taken from Eng.) (U.K.); see also, e.g. JOHN SPRACK , A P RACTICAL APPROACH TO C RIMINAL PROCEDURE § 17.46 (2006) [hereinafter SPRACK , A P RACTICAL A PPROACH ] (citing Connelly ); JOHN SPRACK , EMMINS ON C RIMINAL P ROCEDURE § 16.8.2 (2002) [hereinafter SPRACK , EMMINS ] (same). 164 See Connelly , [1964] A.C. at 1254 (opinion of Lord Reid). For the facts, I will rely on the more straightforward, less controversial, opinion of Lord Reid. 165 Id. at 1295. 166 Id. The then-prevailing practice was for prosecutors to prosecute only one count of murder in any given case. Id. at 1296 (“The difficulty in this case arises from the practice... that a second charge is never combined in one indictment with a charge of murder.”). The Connelly judges all agreed to end that practice. See id. at 1286, 1297, 1367. 167 Id. at 1295. 168 Id. 169 Id. at 1298 (opinion of Lord Morris). 170 Id. at 1298–99.
