Threshold Double Jeopardy Issues

• Jurisdiction: Maryland

I. Threshold double jeopardy issues

A. Double Jeopardy Clause and incorporation

The Fifth Amendment prohibition against double jeopardy provides that no "person [shall] be subject for the same offense to be put twice in jeopardy of life or limb . . ." The prohibition against double jeopardy is incorporated against states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969); Purnell v. State, 375 Md. 678, 691 (2003)

In Green v. United States, 355 U.S. 184 (1957), the Supreme Court stated:

The constitutional prohibition against "double jeopardy" was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense . . . The underlying idea, one that 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.

Id. at 187-88; see United States v. DiFrancesco, 449 U.S. 117, 127-28 (1980) (history and rationale of the Double Jeopardy Clause).

B. Types of prohibition

The guarantee against double jeopardy "consist[s] of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989).

1. No re-trial following completed trial

Subject to exceptions, the defendant may not be re-prosecuted by the same sovereign following a completed trial, whether it resulted in an acquittal or a conviction. Brown v. Ohio, 432 U.S. 161, 165 (1977); Ball v. United States, 163 U.S. 662, 668-69 (1896); Ex parte Nielson, 131 U.S. 176, 183 (1889) (conviction for cohabitating with more than one woman barred prosecution for adultery when based on the same facts).

2. No re-trial following an aborted first trial

Once jeopardy attaches, if the trial is terminated prior to conclusion, the defendant may not be re-prosecuted, unless there was a "manifest necessity" for terminating the first proceeding. Arizona v. Washington, 434 U.S. 497, 505 (1978); United States v. Jorn, 400 U.S. 470, 479-80 (1971); United States v. Perez, 22 U.S. 579, 580 (1824); Hubbard v. State, 395 Md. 73, 91-92 (2006).

3. No double punishment

Between 1932 and 1981, the Double Jeopardy Clause prohibited double punishment by one jurisdiction for the same offense. Over a series of cases between 1978 and 1981, the Supreme Court made double punishment by one jurisdiction an issue of statutory construction and no longer an issue of double jeopardy. Thus, if legislation unambiguously calls for mandatory double punishment, or for double punishment at the option of the sentencing court, such double punishment is constitutional. Nonetheless, in the vast majority of situations, the former double jeopardy analysis still applies, but it applies under the statutory construction approach. In Ohio v. Johnson, 467 U.S. 493 (1984), the Supreme Court stated:

In contrast to the double jeopardy protection against multiple trials, the final component of double jeopardy—protection against cumulative punishments—is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause, whether punishments are "multiple" is essentially one of legislative intent. But where a Defendant is retried following conviction, the Clause's third protection ensures that after a subsequent conviction a Defendant receives credit for time already served.

Id. at 499 (internal citations omitted).

Generally, the Double Jeopardy Clause will not prohibit the Government from imposing both civil and criminal penalties based on the same facts. In Helvering v. Mitchell, 303 U.S. 391 (1938), the Supreme Court held:

[A]cquittal on a criminal charge is not a bar to a civil action by the Government, remedial in its nature, arising out of the same facts on which the criminal proceeding was based has long been settled. Where the objective of the subsequent action likewise is punishment, the acquittal is a bar, because to entertain the second proceeding for punishment would subject the Defendant to double jeopardy; and double jeopardy is precluded by the Fifth Amendment whether the verdict was acquittal or conviction.

Id. at 397-98.

4. Collateral estoppel

The prosecution may not establish facts that have been expressly or implicitly found not to exist in a prior proceeding. Ashe v. Swenson, 397 U.S. 436, 443 (1970). A limited exception to this exists if the defendant seeks, and is granted, a severance of charges that could have been tried together. Currier v. Virginia, 138 S. Ct. 2144, 2150-51 (2018). In Odum v. State, 412 Md. 593, 606 (2010), the Court of Appeals held: "Much like the Supreme Court has done in recognizing collateral estoppel as a form of constitutionally based double jeopardy, we recognize the collateral estoppel form of double jeopardy as part of Maryland common law." Accord Butler v. State, 335 Md. 238, 253 (1994); Cousins v. State, 277 Md. 383, 388 (1976).

Even though the collateral estoppel approach to double jeopardy was not announced until after the Double Jeopardy Clause had been incorporated against the states, the Supreme Court incorporated collateral estoppel against the states as part of the Fifth Amendment's guarantee against double jeopardy. Ashe, 397 U.S. at 445. Maryland common law also recognizes the collateral estoppel form of double jeopardy.

In State v. Allen, 423 Md. 208 (2011), the Court of Appeals addressed "whether collateral estoppel may be applied against a criminal defendant to foreclose the jury from finding for itself all of the ultimate facts that make out the charged crime." In Allen, the defendant was convicted of second degree murder, robbery, and first degree felony murder. On appeal, the felony murder conviction was overturned based on an erroneous jury instruction. The Court held that the faulty instruction entitled the defendant to a new trial on felony murder. Id. at 228-29.

In the defendant's re-trial, the trial court instructed the jury that (a) the only issue for its consideration was whether the defendant committed felony murder; and (b) robbery and second degree murder were not to be considered because the defendant had already been convicted of those offenses. On appeal, the defendant argued that the instruction deprived him of his Sixth Amendment right to trial by jury because the trial court removed from the jury's consideration the issue of guilt or innocence of robbery and second degree murder.

The Court held that collateral estoppel could not be used "as a sword that relieves the State of the burden to re-prove an ultimate fact previously found against the defendant." Id. at 218. The Court stated that allowing "offensive" collateral estoppel deprived the defendant of his right to trial by jury and impermissibly relieved the State of its burden to prove every element beyond a reasonable doubt. The Court stated:

Invocation of offensive collateral estoppel to establish conclusively an element of a charged crime undermines the jury's power and duty to decide for itself whether the prosecution has proven the existence of facts

...