10.6 Double Jeopardy and Collateral Estoppel

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

10.6 DOUBLE JEOPARDY AND COLLATERAL ESTOPPEL

10.601 In General. One of the most conceptually difficult problems in criminal cases is the applicability of double jeopardy concepts. There has been a proliferation of double jeopardy claims, and the Supreme Court of the United States has decided a significant number of cases since 1975. Many of these double jeopardy claims have been produced by the problem of government appeals that are permissible in certain instances in federal criminal prosecutions. Since, at the present, except for specified pretrial rulings, the Commonwealth has no right of appeal in criminal cases, these cases are of no concern in Virginia. Nevertheless, there are many aspects of double jeopardy other than government appeals, and these cases are important to Virginia criminal proceedings since the double jeopardy protections of the Fifth Amendment are binding on the states. ¹⁴⁴

In simple terms, the concept of double jeopardy prohibits the government from subjecting a person to a second trial for the "same offense" after an acquittal or conviction. Another branch of the concept provides protection from a second or additional punishment for the "same offense." ¹⁴⁵ Finally,

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inherent in the concept of double jeopardy is protection from the relitigation of facts, the doctrine of collateral estoppel. ¹⁴⁶

Recognition of the general theory of double jeopardy, however, provides little assistance in addressing the many specific double jeopardy claims advanced. The reasons for the proliferation of double jeopardy claims are clear. First, many trials end by mistrial before verdict. The most common cause of mistrial is a deadlocked jury. In most instances, the government will want to go to trial again after the mistrial. Second, criminal defendants enjoy an almost unlimited right of appeal after conviction. If the defendant is successful on appeal, the government may want to prosecute again. Finally, the proliferation of statutory crimes has created the potential for multiple charges against the accused for what really amounts to a single criminal act or enterprise. Double jeopardy claims often arise when the state elects to prosecute multiple charges.

10.602 When Jeopardy Attaches. The Fifth Amendment's prohibition against being "twice put in jeopardy" applies only when the accused actually faces the possibility of conviction; the accused is not "in jeopardy" until he or she has been put on trial for a crime. Section 19.2-265.6 of the Virginia Code states: "[n]o dismissal of any criminal charge by a court shall bar subsequent prosecution of the charge unless jeopardy has attached at the earlier proceeding or unless the dismissal order explicitly states that the dismissal is with prejudice." The accused's appearance at the preliminary proceedings of a criminal trial does not constitute being placed "in jeopardy" because no finding of guilt can be made in such a hearing.

In a bench trial, jeopardy attaches at the time the first witness is sworn and the court has begun to hear evidence. ¹⁴⁷ An offer to stipulate evidence is not the equivalent of a witness giving testimony, especially when there is no evidence the stipulation was accepted or proffered as evidence. ¹⁴⁸ In a jury trial, jeopardy attaches when the jury is impaneled and sworn. ¹⁴⁹

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Where there is no trial at all but a plea of guilty is entered, jeopardy attaches when the court accepts the defendant's plea. ¹⁵⁰ The dismissal of charges following a preliminary hearing and the dismissal of an indictment before trial do not present a double jeopardy obstacle to the subsequent revival of the same charges. ¹⁵¹ In those cases, the defendant has not been once "in jeopardy." Likewise, when the trial court dismisses a charge on the defendant's motion after jeopardy has attached and the dismissal is based on the failure of the indictment to charge an offense rather than on the adjudication of factual issues in the defendant's favor, double jeopardy principles do not bar retrial. ¹⁵² A pretrial dismissal of a misdemeanor on the merits by a general district court will preclude the Commonwealth from proceeding on the same charge by indictment or presentment in circuit court. ¹⁵³ In addition, a prior proceeding in a court lacking jurisdiction or failing to show venue does not bar a subsequent proceeding in a court with jurisdiction. ¹⁵⁴

An acquittal in a criminal case does not preclude the Commonwealth from relitigating an issue in a later case that is governed by a lower standard of proof. For example, in Ellison v. Commonwealth, ¹⁵⁵ the defendant had been previously acquitted of rape. He was later tried in a civil commitment proceeding pursuant to the Sexually Violent Predator Act (SVPA). The Commonwealth introduced evidence that had also been introduced in the criminal trial in which the defendant had been acquitted. The Virginia Supreme Court held that this did not violate double jeopardy principles because the SVPA proceeding was governed by a lesser standard of clear and convincing proof and was civil and not punitive.

10.603 Mistrials. The double jeopardy provision recognizes the defendant's interest in having his or her trial completed before a particular tribunal. ¹⁵⁶ Criminal trials, however, frequently terminate before judgment,

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either by the declaration of a mistrial or by a "dismissal" that is the functional equivalent of a mistrial. The most common justification for a mistrial occurs when the jury is deadlocked. Once a mistrial (or its functional equivalent) has been granted, a court must be prepared to deal with a double jeopardy claim if the government desires a second trial.

Where the jury reported that it had voted unanimously against convicting the defendant of the greater charges and were deadlocked on the lesser-included offenses, it was not improper for the court to declare a mistrial, which permitted the state to later retry the defendant on all of the charges. An acquittal does not occur until the jury's deliberations have concluded. The jury vote for acquittal on the greater charges was not a final verdict, and nothing in the jury instructions prevents the jury from reconsidering its vote on the greater charges during further deliberations. ¹⁵⁷

The United States Supreme Court, while recognizing the defendant's interest in completing the trial before a particular tribunal, also has recognized the potential for abuse of the mistrial process. The Court has recognized that society has an interest in having one full and fair opportunity to convict and that in some instances the justification for a mistrial may be compelling but have nothing to do with government neglect or fault. In the final analysis, the Court has dealt with the double jeopardy claim in the context of mistrials by balancing the competing interests. The Court has held that the declaration of a mistrial will not present a bar to a second or subsequent prosecution if there was "manifest necessity" for the mistrial. ¹⁵⁸ For example, there is manifest necessity to declare a mistrial when one juror becomes too ill to serve, even though the defendant (but not the Commonwealth) agrees to continue the case with fewer than twelve jurors. ¹⁵⁹ Manifest necessity also exists when the jury, after due deliberation, is unable to agree on a verdict. ¹⁶⁰

If a mistrial is declared because the jury is deadlocked, double jeopardy presents no obstacle to a second trial. ¹⁶¹ Likewise, if a mistrial is declared because of misconduct by the accused or his or her lawyer, there generally will be no bar to another prosecution regardless of the presence or absence of a defense objection, even though the court has not made an on-the-

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record determination of manifest necessity. ¹⁶² A defendant's consent to a mistrial is implied when the defendant has the opportunity to object to the declaration of mistrial but does not. That consent waives the defendant's double jeopardy protection. ¹⁶³

When the mistrial is caused by prosecutorial mistake or misconduct, however, the right of the government to institute another proceeding is less certain. These cases are further complicated by the uncertainty over whether a specific defense objection is relevant or whether, even if provoked, a defense motion for a mistrial bars the assertion of a double jeopardy claim. The Supreme Court's treatment of this problem has not been a model of clarity. In one case, ¹⁶⁴ the defendant made a pretrial motion for a dismissal of charges on the ground that the charging instrument was deficient. The lower court initially denied the motion but later, after the evidence had been received, granted the motion (which the Court characterized as the functional equivalent of a mistrial). Although the deficiency in the charging instrument was due to the negligence of the prosecution, the Court permitted a subsequent prosecution. ¹⁶⁵ The Court has, however, upheld a double jeopardy claim following a mistrial over defense objection when granted due to the absence of a material government witness. ¹⁶⁶ Finally, prosecutorial misconduct, even if viewed as harassment or overreaching and sufficient to justify a mistrial, does not bar retrial absent proof of intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. Only where the prosecutor's conduct is intended to "goad" the defendant into moving for a mistrial may a defendant assert double jeopardy as a bar to retrial. ¹⁶⁷ Without the requisite intent, even gross prosecutorial misconduct will not satisfy the test. ¹⁶⁸

The Supreme Court has expressed a willingness to look beyond the language used by a trial court to characterize the action of the court in terminating

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the trial as the functional equivalent of a mistrial. In some cases, however, it may not be clear whether the trial court's reasons for terminating the trial constitute an "acquittal" or a non-merit-based determination that...