12.3.3 Appeals

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

12.3.3 Appeals

A defendant normally waives the right to claim a violation of double jeopardy rights when she files an appeal.³⁸ While appeals may be made before jeopardy attaches,³⁹ most double jeopardy problems arise with prosecution appeals after jeopardy has attached but before conviction. As long as the proceedings were not terminated on the basis of the defendant's innocence, reprosecution will not necessarily be forbidden.⁴⁰ Determining if the basis for dismissal was the defendant's innocence can be problematic. Suppose, for instance, that the trial judge orders dismissal because the prosecution's case is found to be insufficient to prove guilt. Is reprosecution barred? Yes, said the Supreme Court, because a finding of insufficiency had been made.⁴¹ This principle is followed on appeal as well. If the defendant's conviction is reversed on appeal solely because the evidence was held insufficient as a matter of law to uphold the conviction, double jeopardy operates as a bar to reprosecution.⁴² Conversely, a successful appeal may allow reprosecution for the same offense if the basis for the appeal was not solely insufficiency of the evidence.⁴³ It will not, however, allow a new trial for a greater offense if the prosecution had been unsuccessful initially as to that greater offense. For example, if in the first trial the defendant is found guilty of second-degree murder, a subsequent prosecution for first-degree murder—after an appeal—is barred.⁴⁴

The rule regarding prosecution appeals is fairly clear. The prosecution may appeal any ruling by the judge in the defendant's favor after a guilty verdict has been rendered. The Double Jeopardy Clause does not prohibit review of issues that do not require a further trial. The prosecution, therefore, may appeal the dismissal of an indictment after a guilty verdict is decided. Double jeopardy does not bar...