Public Policy and Private Peace-The Finality of a Jgdicial Determination

• Author: Captain Matthew B. O'Dannell, Jr.
• Pages: 02

I. INTRODUCTION

The state in its responsibility to society as a whole has a vital interest in seeing that the guilty shall not go unpunished for their crimes. It could well be that the very existence of the state could depend on the fulfillment of this policy. But this natural desire for retribution does not stand alone.

There are other policy considerations-eountervailing, perhaps, but not necessarily incansistent-to be taken into account. For the state also has an interest in seeing that there be an end to litigation. Additionally, there exists the proposition that it is basically unfair to require a person to be tried more than once without his consent for the same cause. As the Supreme Court has stated, a person should be required to run the gantlet but once.'

The Troblem arises most frequently when what is essentially a single act or course of criminal conduct is made the basis for successive criminal prosecutions. It is the purpose of this paper to examine the problem of successive trials in light of these considerations of public policy and private peace. An analysis of federal and military practice in this area will be made with appropriate emphasis accorded to the doctrines of double jeopardy, res judicata, and law of the case.

11. DOUBLE JEOPARDY IN THE FEDERAL SYSTEM A. HISTORICAL DEVELOPMENT OF THE DOCTRINE

The fifth amendment to the Constitution of the United States provides that no person shall "be subject for the same offense to

*This article was adapted from a thesia presented to The Judge Adweate General's School, U.S. Army. Ch&ilottesYilie. Virpinis, while the author was a membep of the Eleventh Career Course. The opinions and conelu@ioni presented heiein are +.how of the author and do not neeessarily reprellent the view of The Judge Advoeate General's School or my other governmental agency.

** JAGC. U.S. Army; Military Justice Division, OKce of the Judge Advc e& General; LL.B., 1954, LL.M, 1965, Georgetown Law Sehwl; Memkr of the Bar8 of the District of Columbin. the U.S. Court of Militpry A~wala.

. ..

and the US. Supreme Court.

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1 Green I. United States. 266 U.S. 184, 190 (1811).

be twice put in jeopardy of life or limb , , , .''S Although the pro. vision was at first construed to prevent a convicted defendant from obtaining a writ of error and a new trial,' this approach was not followed by other federal courts.' The Supreme Court resolved the dispute in L'nited States 8. Ball by holding that a defendant who successfully appeals a conviction may be subsequently retried for the same offense of which he had been convicted. This result was reached on the theory that a defendant, by appealing, should be deemed to have waived his objection against being subjected to another trial on the eame charges.

In deciding whether the government may appeal an erroneous acquittal, the Supreme Court has distinguished between state and federal precautions. In K e m r 8. l'nited States,' the Court held that to permit the federal government to appeal an acquittal would violate the double jeopardy provisions of the fifth amendment. Mr. Justice Holmes dissented' on the grounds that the waiver theory has no place in a discussion of double jeopardy. He agreed that an accused should be able to appeal an erroneous conviction and thereby be subject to retrial if successful, not on the grounds that he had waived a basic constitutional right, but because the jeopardy is "single" rather than "double." In ather words the theory is one of continuing jeopardy, which also permits the government to appeal an erroneous acquittal without the accused being placed twice in jeopardy.

As to state prosecutions, the Supreme Court held in the case

2 The eonatitutionsl prohibition againat double jeopardy reistea miy to succeaawe pmneeutiana far the same offense and 18 not concerned with the question af multiple punishment at 8 single trial for several offensea arising out of B mgle transaction or eoum 01 eanduet. See Abbate V. United States, 359 U.S. 187, 197-201 (1959) (sepaiate opinion of Mr. Justice Brennan): Gore V. Dnited States, 367 U.S. 386 (1958); United Staten V. Ssbella, 272 F.2d 206, 211-12 (2d Cir. 1959). But sa8 Note, 65 YALE L.J. 338, 360 (1966).

8 L'mted States V. Gibert, 25 Fed. Cas. 1287 (No. 16,204) (C.C.D. Mass. 1834). Thin result is not ai ahoekmg as might firat appear when it is realized that the court was following British preeedente which constrved the commonlaw piesa of axtreiob mpmt and aiutrsiob conurct-the common law s d o g ~ e of double jeopardy-** completely precluding any second trial.

4 United States Y. William, 28 Fed. Caa. 836 (No. 16,707) (C.C.D. Me. 1858); UmM Ststea Y. Hsrding, 26 Fed. Cas. 131 (No. 15,301) (C.C.E.D. Pa. 1846); United States Y. Connor, 25 Fed. Cas. 695 (No.

14,841) (C.C.D. Mich.

*GO 6iMB

184.51.

6183 U.S. 862 (1896). 6 195 U.S. 1W (1904). 1 Id. at 134.

RES JUDICATA IN MILITARY LAW

of Pdko v. Connecticut 8 that a state statute permitting the state to appeal in criminal cases for correction of errors of law was not unconstitutional. Mr. Justice Cardozo, speaking for the Court, assumed that Kepner correctly held that the fifth amendment prohibited a government appeal in federal proBecution8, but he went an to say that the due process clause of the fourteenth amendment did not prohibit double jeopardy and hence that a state may properly provide for prosecution appeals of errors of law. The Court rejected Palko's contention that the fourteenth amendment embodies all the protections of the Bill of Rights in general and of the double jeopardy provisions of the fifth amendment in particular. Rather, the Court held the fourteenth amendment protects only those rights "of the very essence of a scheme of ordered liberty."

Even though the federal government may not appeal an errone-oua acquittal, it was held in Trono u. Vndted States that when an accused charged with a crime is convicted only of a lesser lncluded offense and successfully appeals his conviction thereof, he may be retried for the greater offense. The Court concluded that the defendant by appealing his conviction had waived his right to plead double jeopardy as to any part of the trial. The effect, in other words, was as though the first trial had never taken place. Thus, while the government could not appeal an erroneous acquittal, it could under the Trono doctrine retry an accused for an acquittal which was presumably free from error.ll

This doctrine of "complete waiver" remained the law until 1951 when the Supreme Court held by a 5-4 decision that in a federal prosecution a defendant by appealing his erroneous conviction of a iesser offense did not reopen his acquittal af the

8302 U.S.

319 (1937). In this ease the defendant was charged with firat. degre murder but was found guilty only of second-degree murder and sentenced to life mprisonment. The government appealed pursuant to a atate statute whach permitted nueh appeal npon m y question of law. The state sureme court reversed and ordered a new trial. The defendant was then f&d gvilty of firrt.degree murder and ienteneed to death.

9 Palko V. Connecticut, 302 U.S. 318, 325 (1937). That this point is not accepted with complete unanlmity 1s illustrated by the disaentmg opinion ofXr. Svstiee Douglaa ~n Hoag Y. Xew Jersey. 366 U.S. 484, 471 (185s).

10 199 U.S.

621 (1905)11 Even Csrdozo was careful to note that Palko did not extend to statutes which would permit the retrial of an accused following a trial free from error. Paiko V. Connecticut, SO2 US. 319, 325 (1937).

1sGreen V. United States, 355 U.S. 184 (1957). Although the Court did not Oxpresdy OveTmIo Trona, the rewlt certainly was to remove the accused from the "incredible dilemma" in which he was placed by wrtue of the Tmnodecision.*oo 171'B 59

greater offense.Ia Mr. Justice Frankfurter, vigorously dissenting, pointed out that a substantial number af states permit what the majority of the Court held to be a violation of a vital safeguard of society.13

E. WHAT IS THE SAME OFFENSE?

The fundamental rights of the accused with respect to double jeopardy have thus been judicially developed over the years. But the doctrine of double jeopardy is applicable only when the ac-cused has been twice placed in jeopardy for the "same offense." The problem ariBes when one act violates several statutory norms or several acts in one transaction violate one statutory norm.

Generally, the courts, in attempting to determine whether two charges amount to the "same offense," have utilized one of two judicial devices, the "same evidence" test or the "same transaetion" test. The former appears to be the more commonly accepted test in both state" and federalI6 courts. This test, often called the Buller rule in honor of the author judge, was first laid doan in the Enpliah case of Res T. I'andercomb in rhich it was stated (denying a claim of autrefois acquit) 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 an the first indictment can be no bar to the second." I'

The effect of the "same evidence" rule is to equate "offense" with the legal theory an which the accused is brought to trial.18 Notwithstanding the strict interpretation of the "same evidence" test

16 For P criticism a i the "same evidence" teat 8s interpreted by the eourta, see Klraeheimer. Tho Act. tho O ~ B M ~ , and Double Jeawdy, 58 YALE L.J.513 (19491.60 ,400 17148

RES JUDICATA IN MILITARY LAW

which has been given by the courts, it remains the more popular rule. Nonetheless, a small number of state courts have adopted the 'kame transaction" test, according to which two offenses are the same-and thus the accused is being placed twice in jeopardy-if both were part of the same criminal transaction." Although simple in expression, the test has proved to be somewhat complicated in execution. For example, in Harris 8. State the court indicated that the...