One bite at the apple: reversals of convictions tainted by prosecutorial misconduct and the ban on double jeopardy.

• Date: 01 March 1996
• Author: Bierschbach, Rick A.

Introduction

In a Pennsylvania community, a middle-aged schoolteacher is found dead in the trunk of a car. A massive investigation ensues and results in the indictment of a single defendant for first-degree murder. No evidence exists that directly implicates the defendant in the killings, and he adamantly professes his innocence from the outset. The prosecutor is convinced that the defendant is guilty but is frustrated by the lack of direct evidence and fears that he will not be able to secure a conviction at trial. He negotiates with a key prosecution witness to deliver damaging false testimony against the defendant and with a detective to "discover" evidence linking the defendant to the crime scene. At trial, the defendant - repeatedly contesting the truthfulness of the prosecution's case - is convicted and subsequently sentenced to life in prison.

While preparing for appeal, the defense counsel discovers the prosecutor's misconduct. The appellate court reverses the conviction because of the misconduct and finds that without the fabricated evidence there would have been insufficient evidence to convict. Nevertheless, the Government initiates a new trial on the same charges. The defendant then moves to bar the retrial under the Constitution's Double Jeopardy Clause to avoid the ordeal of a second trial.(1)

Given the uncertain relationship between prosecutorial misconduct and the Double Jeopardy Clause, whether a court would grant the defendant's motion is unclear. Under the long-established rule of United States v. Ball,(2) the Double Jeopardy Clause does not bar the retrial of a defendant whose conviction simply has been reversed on appeal.(3) Burks v. United States(4) established the only existing exception to Ball when it forbade retrial after the reversal of a conviction on grounds of insufficient evidence.(5) But the Supreme Court also has recognized, albeit in the context of mistrials, that particularly egregious prosecutorial misconduct can and should trigger the protections of the Double Jeopardy Clause. In Oregon v. Kennedy,(6) the Court held that double jeopardy prohibits retrial when a defendant successfully moves for a mistrial on the basis of prosecutorial misconduct intended to goad him into requesting the mistrial.(7) When prosecutorial misconduct in the submission of evidence provides the basis for an appellate reversal, however, double jeopardy jurisprudence remains undeveloped.(8)

This Note argues thMY the Double Jeopardy Clause bars retrial after reversals of convictions tainted by prosecutorial misconduct in the submission of evidence when two conditions are met: (1) the prosecutor intentionally introduced tainted evidence,(9) and (2) excluding the tainted evidence would have left insufficient evidence at trial to support the defendant's conviction. This Note contends that this limited extension of double jeopardy protection is both mandated by the policies underlying the Double Jeopardy Clause and consistent with existing double jeopardy jurisprudence.

Part I identifies the competing interests that the Court attempts to balance whenever a defendant invokes the double jeopardy ban on successive prosecutions. Part II examines the balance of interests in two lines of double jeopardy cases - those dealing with reversals of convictions and those dealing with mistrials tainted by prosecutorial misconduct - and concludes that when the event triggering a retrial cannot be characterized as a procedural error, the defendant's double jeopardy interests generally outweigh those of the state. Part III argues that in cases of reversals based on intentional prosecutorial misconduct in the submission of evidence, double jeopardy should bar retrial if insufficient evidence exists to sustain the conviction in the absence of the tainted evidence.

1. Double Jeopardy Interests

   The fundamental tenet animating the Double Jeopardy Clause is that the State should not be able to oppress individuals through abuse of the criminal process.(10) No single principle, however, determines when the reprosecution of a defendant is oppressive for purposes of double jeopardy. Rather, defining that point involves balancing the competing rights and interests of both individuals and society.(11) This Part identifies and examines the interests contemplated by the double jeopardy ban on successive prosecutions. Section I.A defines the protected interests of the accused. Section I.B defines the interests of society against which the rights of the accused are balanced.

   1. The Interests of Defendants

      The Court traditionally has viewed the Double Jeopardy Clause as safeguarding three interests of defendants: the interest in being free from successive prosecutions, the interest in the finality of judgments, and the interest in having the trial completed in front of the first tribunal. This section examines each interest in turn.

      The most basic interest protected by the Double Jeopardy Clause is the defendant's interest in being free from the consequences of successive prosecutions.(12) Green v. United States(13) best articulates the fundamental policy underlying this interest:

      The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.(14)

      The accused has a fundamental interest in restricting the Government to a single attempt to prove his guilt at trial for two main reasons. First, multiple attempts by the Government to prove guilt seriously disrupt a defendant's personal life during trial(15) and thus provide a vehicle for severe governmental harassment of the defendant.(16) Second, repeated prosecutions increase the risk of an unjust conviction of an innocent defendant by wearing down the defendant and giving the Government new opportunities to learn from its earlier mistakes and to hone its trial strategies.(17)

      Growing out of a defendant's interest in facing only one prosecution for an alleged offense is his interest in the finality of judgments.(18) Protection of the finality of judgments recognizes the value of the repose that attaches to the entry of a conclusive verdict, whether in favor of or against a defendant.(19) Thus, a verdict of acquittal represents a final judgment that frees the defendant from the specter of future prosecution.(20) In short, finality contemplates "the importance to the defendant of being able, once and for all, to conclude his confrontation with society."(21) In doing so, it seeks to define those instances in which retrial of a defendant constitutes the sort of oppressive governmental action that the Double Jeopardy Clause is intended to prevent.(22)

      Related to but separate from a defendant's interest in the finality of judgments is his interest in his first tribunal.(23) This interest encompasses a defendant's right to have his guilt or innocence determined in a single proceeding by the initial jury empaneled to try him.(24) The right stems from the Court's early recognition that if the Government simply could abort any proceeding that it perceived as going poorly, the defendant's protected interest in the finality of a verdict would be little more than a "hollow shell."(25) Pre-verdict trial terminations deprive a defendant of the "option to go to the first jury and, perhaps, end the dispute then and there with an acquittal."(26) In doing so, they deprive the defendant of the repose that would have attached had the trial been allowed to run its course. The defendant's interest in a particular tribunal thus supplements his core interest in final judgments by protecting him against governmental manipulation of process designed to prevent the initial fact finder from reaching a verdict in the defendant's case.(27)

      The defendant's interests protected by the Double Jeopardy Clause are not absolute.(28) Balanced against those interests is the state's need for effective enforcement of its criminal laws.(29) As the Court has recognized repeatedly, that need is satisfied by guaranteeing to society the right to one full and fair opportunity to prove a defendant's guilt.(30) When circumstances at trial have denied society that right, the need of society to vindicate its laws usually will outweigh the double jeopardy interests of a defendant.(31) Justice Harlan stated the rationale underlying this balancing approach and its centrality to the Court's double jeopardy jurisprudence in United States V. Jorn:(32)

      Certainly it is clear beyond question that the Double Jeopardy Clause does not guarantee a defendant that the Government will be prepared, in all circumstances, to vindicate the societal interest in law enforcement through the vehicle of a single proceeding for a given offense. Thus, for example, reprosecution for the same offense is permitted where the defendant wins a reversal on appeal of a conviction. United States v. Ball, 163 U.S. 662 (1896) .... The determination to allow reprosecution in these circumstances reflects the judgment that the defendant's double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decision-making resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error.(33)

      The State's right to a complete and error-free prosecution thus defines the boundaries of the defendant's interests. Although a defendant is guaranteed freedom from prosecution after the completion of a single error-free proceeding, he is not guaranteed such a proceeding in the first instance.(34) Indeed, when trial error deprives society of its right to attempt to prove the...