Traditional Double Jeopardy

• Jurisdiction: Maryland

II. Traditional double jeopardy

Common law double jeopardy included "autrefois acquit," which barred re-trial for an offense for which the defendant was acquitted, and "autrefois convict," which barred re-trial for an offense for which the defendant was convicted. Farrell v. State, 364 Md. 499, 510 (2001). These two common law theories are part of the Fifth Amendment prohibition against double jeopardy. Ex parte Lange, 85 U.S. 163, 169 (1873). Thus, once convicted, subject to exceptions, the defendant cannot be placed in a second jeopardy for the same offense, Pearce, 395 U.S. at 717, and once acquitted, the defendant cannot be placed in a second jeopardy for the same offense.

A. Prior actual or implicit acquittal

If the jury or a trial court in a non-jury trial renders a verdict of "not guilty" on the merits, double jeopardy bars re-prosecution. Benton, 395 U.S. at 796; Ball, 163 U.S. at 669.

If the defendant was convicted of a lesser included offense (whether expressly or implicitly charged), and the jury failed to render a verdict on the greater offense, conviction of the lesser included offense is an "implied acquittal" of the greater offense.

In Price v. Georgia, 398 U.S. 323, 327 (1970), the Supreme Court held that, after reversal of a voluntary manslaughter conviction, in a case in which greater homicide offenses were a jury option, re-trial was limited to the lesser included offense of voluntary manslaughter. In Green, 355 U.S. 184, when the defendant was acquitted by a jury of first degree murder, and convicted of second degree murder, which was reversed, the defendant could not be re-tried for first degree murder. Id. at 190.

In Johnson, 467 U.S. 493, the Supreme Court held that, when the trial court accepted a guilty plea, and dismissed other charges, over the State's objection, double jeopardy did not bar prosecution on the dismissed charges, because there was no "implied acquittal." Id. at 501-02.

In Serfass, the defendant was charged with willful failure to submit to induction into the Armed Forces. The trial court dismissed the indictment on grounds that the defendant was entitled to review the Government's rejection of his application for conscientious objector status. The Government appealed and the defendant argued that the appeal was barred by the Double Jeopardy Clause because the district court dismissed the indictment on the merits, which was an implied acquittal. The Supreme Court held that the Government could appeal because jeopardy never attached, stating:

[J]eopardy had not yet attached when the District Court granted [the defendant's] motion to dismiss the indictment. [He] was not then, nor has he ever been, put to trial before the trier of facts. The proceedings were initiated by his motion to dismiss the indictment. [He] had not waived his right to a jury trial . . . In such circumstances, the District Court was without power to make any determination regarding [the defendant's] guilt or innocence.

420 U.S. at 389 (quoting Fed. R. Crim. P. 23(a)).

B. Silence on a count constitutes an acquittal, plus exceptions to that rule

Normally, silence by a fact finder on a count constitutes an acquittal on that count. In State v. Prue, 414 Md. 531, 547-48 (2010), the Court of Appeals identified three exceptions to the general rule that failure to render a verdict on a count constitutes an acquittal.

1. Hung jury

In Selvester v. United States, 170 U.S. 262 (1898), the Supreme Court stated: "[I]f . . . after the case had been submitted to the jury, they reported their inability to agree, and the court . . . discharged them, such discharge would not be the equivalent to an acquittal." Id. at 270. In State v. Griffiths, 338 Md. 485 (1995), the Court of Appeal stated that a "hung jury is the 'prototypical example' of manifest necessity for a mistrial." Id. at 490.

2. Absence of a verdict on a count pursuant to the court's instructions regarding the verdict sheet

In State v. Moulden, 292 Md. 666 (1982), the Court of Appeals held:

Because of the court's instruction to the jury that it need not consider the simple robbery count if it found the Defendant guilty of armed robbery, because the jury did in fact find the Defendant guilty of armed robbery, and because our legal system necessarily proceeds upon the assumption that jurors will follow the trial judge's instructions, in a real sense the simple robbery count was not submitted to the jury for its consideration.

Id. at 678-79.

3. Guilty verdict on a greater offense and silence on a lesser included offense

If the defendant is convicted of a greater offense, jury silence on the lesser included offense will generally be deemed the equivalent of a guilty verdict on the lesser included offense. In Prue, 414 Md. 534, the Court of Appeals stated: "[This] exception is based on simple logic. If the greater offense contains all of the elements of the lesser included offense, a guilty verdict on the count charging the greater offense necessarily means that the defendant was also guilty of the lesser included offense." Id. at 549.

C. Legal rulings that acquit

1. Correct legal ruling that acquits

Dismissal of charges by a trial court bars re-prosecution if termination of those charges was the functional equivalent of acquittal. Scott v. United States, 437 U.S. 82, 91 (1978); Giddins v. State, 393 Md. 1, 27 (2006). When the trial court grants an MJOA, that is a legal finding of "not guilty." It is a ruling that there is insufficient evidence to convict, and the defendant is not guilty as a matter of law. Smalis v. Pennsylvania, 476 U.S. 140, 144-45 (1986). The question is "whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements charged." Kendall v. State, 429 Md. 476, 486 (2012) (quoting United States v. Martin Linen Supply, Co., 430 U.S. 564, 571 (2012)).

Dismissal of a delinquency petition in a juvenile proceeding, based on failure of the State to present evidence, is the equivalent of an acquittal for purposes of double jeopardy. In re Kevin E., 402 Md. at 632. In Martinez v. Illinois, 572 U.S. 833, 134 S. Ct. 2070 (2014), the Supreme Court held, in a per curiam opinion, that the defendant could not be re-prosecuted under double jeopardy after he was acquitted at trial. Before trial the State had sought a postponement to locate its complaining witnesses, which the court denied. The court then empanelled and swore a jury to hear the case. But, when the trial began, the State declined to participate and did not present any witnesses or argument. The court then directed a verdict of not guilty. In attempting...