Former Jeopardy-A Comparison of the Military and Civilian Right

• Author: by Lieutenant Colonel Robert C. Kates
• Pages: 03

1. INTRODUCTION

   The practical application of the doctrine of former jeopardy in both the federal civilian and military jurisdictions is substantially identical. Three of the same problem areas occur with the same relative frequency in each sphere: (1) When does jeopardy bar a rehearing; (2) When does the declaration of a mistrial cause jeopardy to attach; and (3) Is the later trial far the "same of. ense?'''

   Each jurisdiction can learn from the precedents of the other, for the doctrine of former jeopardy in each hieraehy has substantially the same legal bask As a matter of fact, one of the mast important civilian decisions an the question of when the declaration of a mistrial does not cause jeopardy to attach is the decision of the United States Supreme Court in Wade v. Hunter: in which the prisoner was convicted by a pre-Code court-martial. In the following discussion emphasis will be put on the military decisions. They in turn rely almost exclusively on civilian concepts. Their number has increased in the last few years due to the creation of the law officer in the image of federal judges, with the judicial discretion of the latter bath to declare mistrials and to deny them. Because this is a fairly recent development in B comparatively new, but huge criminal jurisdiction, the Court of Military Appeals has approached the problems critically, with the desire of not only building the military law in accordance with good civilian precedent, but also making it adaptable to the military needs. Whether there is any inconsistency in these two aims can best be ascertained by examining the nature of the military right against double jeopardy.

   * The opinions and conclusions presented herein are those of the author and do not neeeraarily represent the ~iewsof The Judge Advocate General's School or any other goVemnentd egomy.

   ** JAGC, U. S. Arm"; Member of Faculty, The Judge Advocate General's School, U. S. Army. Chariottesville, Virginia: member of the Diitriet of Columbia Bar: LL.6.. 1962. Georeetown Univerritv.

   1 The limitations of this mtifie do not permii discuasion of this vital, additional problem: whee the aeeused ha. been acquitted at the Rrat trial. fa what extent WULII collsfer~l ertaoDel orevent trial on B reisted ofsense that is not the ''enme ofsenae" within %e meaning of the jeopardy protection?

   2 336 U.S. 684 (1949).

   11. ORIGIS OF THE MILITARY RIGHT

   The predecessor to the Uniform Code,3 the Articles of War, contained provisions incorporating the old common law concept of former jeopardy.' Under them an accused could plead the equivalent of the old special pleas of autre fois aCQuit and autre ioiS convict, in order to be protected from Buccessive trials for the same offense. This required, however, a completed trial.6 Article of War 40 therefore did not prevent the withdrawal af charges before verdict and reference of the charges to another court-martial where the plea of former jeopardy-under the Article, at least-was unavailable to the accused. This shortcoming was brought to the attention of the drafters of the Code through the military case of Wade v. Hunter: decided by the Supreme Court while the Uniform Code was being considered, In Wade, it was assumed, but not decided, that the Fifth Amendment protection applied to the military: that even under the Fifth Amendment, for urgent tactical reasons of combat, B trial could be terminated before verdict without jeopardy attaching, provided the case was not withdrawn in bad faith or to save a possible acquittal. In Wade the majority opinion pointed aut that even in Federal courts, mistrials may be declared "where the end of public justice would otherwise be defeated,"' and that in such cases jeopardy does not attach. The opinion did not, however, indicate that a eonvening authority would have all the mistrial powers of B federal judge, but only that far urgent military necessity he could terminate the trial.

   The Congress intended that the convening authority have such power at the same time the drafters of the Code added what was intended to be a protection against the abuse of unwarranted with. drawal of charges by either the prosecutor (who under the Manual mby 60 act only by direction of the convening authority) or the convening authority:

   A proceeding which, subsequent ta the introduction of evidence but prior to a finding is diimiraed or terminated by the convening authority

   OP on motion of the prosecution for failure of available evidence 01 Wit-nesses without any lauit of the accused ahsli be B trisi in the senie ofthis srtieie.Q

   The wording pertaining to "failure of available evidence . . ,

   without any fault of the accused" is identical to the stricter prohibition against retrial as set forth in Comer0 V. United States." an appellate decision considered by the rafters of the Code, but rejected in Wade. Subsequent decisions of the Court of Military Appeals, however, have apparently approved withdrawal of charges by the law o,fiicer,ll under the broader test of "manifest necessity in the interest of justice," as adopted in Wade, for judges.

   Another statutory change relating to former jeopardy was that imposed by the limitation an authority to order rehearings.l2 This was necessary because of the then existing federal law relating to former jeopardy. Under that concept, once convicted, an accused could not be retried unless he appealed his conviction, thereby "waiving" his right to assert a former conviction at a rehear in^.'^ But the drafters of the Code feared that the Code's automatic appeal provision in ca8ea going to the boards of review would preclude the application of such "waiver" theory and place the mill-tary accused in a less advantageous position than his civilian counterpart who might be content with his first conviction." Congress intended that the military accused have all the protections of the Fifth Amendment aeainst former jeopardy, whether or not the Amendment applied, of its own force, to the military.16 Therefore, to compensate" for the fact that the military accused really could not "waive" the protection against a second trial when he did not appeal his first conviction, Congress gave the military accused two safeguards not then enjoyed by the civilian: (1) It forbade rehearings unlea8 a "prima facie" case had been made at

   Q UCMJ, art. 44ie).10 48 F.2d 69 (9th Cir. 1031).li In the earlier and leading eale, United Stater V. Stringer, 5 L'SCMA 122, 17 CMR 122 (1950. Judge Broarnan atatsd that only the convening authority had aueh power. Judge Quinn believed that only the law officer had such "miatrial powersl" while Judge Lstimer would allow either officer ta so act. Apparently ail the present judges now agree that the 1.w officer has thia power Significantly, sine. Stnnier, there ale no reported casei where the convening nuthority has declared si miatrial. Cf. United States V. Ivory, 5 USCMA 616. 26 CMR 286 (1968).

   I2 UCMJ, art. 63.18 United States". Ball, 163 U.S. 662 (1856).

   14 See note 4 BUP70.

   II Ibrd. See separate opinions m United States V. Ivory. 8 USCMA 616,26 CMR 206 (1568): Quinn, The United States Court of .Mz!itnry Appea!a and .N%!itary Due Prorssa, 35 St. John's L. Rev. 226, at 234 (1961).

   14 S. Rep. No. 486, 81st Cong.,

   1st Sea. 18 (1948).

   the firet trial;)? (2) It prohibited a rehearing of an offense for which he was acquitted at the firet and (3) It prohibited B

   sentence in excess of that adjudged at the original trial.1Q

   111. TIME JEOPARDY ATTACHES

   The Code provides that "No pereon shall without his consent, be tried a second time for the same offense."2o Thus jeopardy attaches when there has been a "trial." But has there been a "trial" if the proceedings are terminated: (a) before plea, (b) between the pleadings and the findings, or (e) after the findings, but before sentencing?

   1. BEFORE PLEA

      "A proceeding which subsequent to the introduction of evidence, but prior to a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of availabie evidence or witnesses without any fault of the accuaed shall be a trial in the sense of this artiele."21 Under this provision, except where "manifest necessity" justifies the declaration of a mistrial by the law officer, jeopardy attaches only upon receipt of evidence on the merits.zz Thus jeopardy does not attach when preliminary evidence on pre-plea motions ili received.23 although once the court is convened the accused may be entitled to a rehearing if the prasecution does not show "good cause" for withdrawing the case from that particular court-martial and referring it to another for trial,E

      I? Ibid. UCMJ. art. 6318). ~eaui~e.

      "sufficient evidence in the record to wi up port the hndmga" as a prereqiinite to B rehearing. There is no apparent limitation ~n federal courts: once B civilian aceused appeals P eonvietian on B charge far which he should have been acquitted, he can be retried regardless of the itate of the evidence, pmvided Such rehearing is "IYSL." Bryan V.

      United States, 338 U.S. 552 (1950). discussed ~n Mayers and Yarbrough, Bia Vszw: Sew Trial8 and Suooeaaive Proarouhoni, 14 Hsrv L Rev, 1, 13/,aCn/

      ~.""",.

      LE UC?dJ. art. 63(b). At the time of the enactment of the Code P civilian

      who appealed hia canvietion of a iedier included offense in a federal court on rehearing could be convicted of the PnnelDle offense of which he had been acquitted originally, on the theory that he had "waived" the right to ablect to retrial on the offense of which he hsd been acquitted. Trano v United States, 199 U.S. 521 (1905): United States V. Ball, 163 US. 362 (1896). Trono WBI in effect overruled by Green Y. United States, 355 L' S 184 119571.

      I@ UCMJ,art 63(bl10 UCMJ, art. 44 (emphasis added)21 L'CMJ, art. 44(el (emphasis added!.

      12 United States Y. Wells, 9 USCMA 509, 26 CMR 289 (1958).18 I h 4 Bli-rii Has iemardy attached when a disputed fact question ISrained by receipt of prelminsry evidence on a pre-plea motion...