What's wrong with a little more double jeopardy? A 21st century recalibration of an ancient individual right.

• Author: Creekpaum, Kyden

1. INTRODUCTION

   In England, a young woman goes missing, and months later her own mother discovers her body behind a panel in the bathroom of her home. The prime suspect is tried twice in English courts. When neither jury reaches a verdict, he is acquitted under English law. Later, knowing double jeopardy protects him from retrial, the killer confesses multiple times to multiple people. He is convicted of perjury because he had testified falsely in both prior trials, but double jeopardy rules prevent the government from retrying him for the actual murder.(1)

   Under American double jeopardy law, a person acquitted of a murder cannot be retried for that murder. (2) Until recently, the same would have been true in England. In 2003, the English changed their rules to allow for limited reprosecution of the acquitted. (3) In the real case described above, the murderer Billy Dunlop became the first person in English history to have his acquittal quashed, and then to be retried and convicted. (4) This Note is concerned with the question of whether the United States should pursue a similar goal of double jeopardy reform to provide more ways to retry the erroneously acquitted.

   In England, the policy crusade to change the double jeopardy laws was led by the mother of murder victim Julie Hogg, whose case is described above. (5) Her killer, Dunlop, pied innocent and testified falsely on his own behalf in two murder trials that each ended in a hung jury. The English court then recorded a "not guilty" verdict. (6) Later, Dunlop confessed to the crime and bragged (correctly) that he was protected by double jeopardy law. (7) Based on the new evidence of his confession, and because "on two entirely separate occasions [Dunlop] had lied on oath when on trial for murder to avoid conviction," he was convicted on two counts of perjury and sentenced to twelve years in prison. (8)

   Enraged that her daughter's killer was only sent to jail for lying instead of for murder, the victim's mother embarked on a quest to change the English double jeopardy law. (9) The reform movement succeeded when Parliament passed the Criminal Justice Act of 2003 [hereinafter the Act]. (10) The Act included extensive criminal justice reforms, one of which was a carefully crafted exception to the double jeopardy prohibition. (11) The new reforms allow for an acquittal to be quashed and for the acquitted to be retried, but only for certain crimes, only with new and compelling evidence, and only with redundant approvals and appealability. (12) Billy Dunlop's acquittal was quashed and he was retried and convicted of murder in September 2006. (13)

   English law is the foundation from which American jurisprudence has evolved, and the two systems' double jeopardy rules remain similar. (14) While the 2003 double jeopardy reform does not entirely raze a seven-hundred-year-old pillar of English common law, (15) it does chip away some quantum of individual liberty protection that far pre-dated European discovery of the New World. (16) When our English cousins find it necessary to make a dramatic change in their centuries-old double jeopardy rules, it is wise for the American legal community to inquire whether the English have identified a valid and relevant concern. If so, the American legal community should inquire whether the English have crafted a proper solution, and whether and how the United States should follow suit.

   The English double jeopardy modernization is sound policy, and the United States should explore options to achieve similar, limited goals without destroying the careful balance between accuracy and finality. Part II of this Note outlines the current status of double jeopardy in the United States. Part III explores the policy goals of accuracy and finality as components of overall legitimacy that are always in tension, and then explains important double jeopardy pressure release valves, including the important federalist wrinkle of dual sovereignty. Part IV explains the new English regime and its procedural safeguards. Part V suggests several options to expand discretionary government power to retry erroneously acquitted persons in the United States and concludes that the best solution is to push for expanded use of acquittal appeals in the short term under the current system and to work toward a constitutional amendment to allow for equal opportunity criminal appeals for both the defense and the prosecution, thus introducing symmetry and balance into an otherwise unbalanced and asymmetrical system.

2. DOUBLE JEOPARDY, ANCIENT AND MODERN

   The prohibition against double jeopardy helps reinforce the legitimacy of the justice system by seeking to strike a balance between finality and accuracy. The virtue of finality, enshrined in the concept of double jeopardy, is a vital ancient protection of individual liberty. (17) When every trial exposes the defendant to significant "embarrassment, expense, and ordeal," the virtue of finality protects individuals from "liv[ing] in a continuous state of anxiety and insecurity" (18) while worrying about possible future retrial. (19)

   Finality is sometimes achieved at the cost of accuracy: we may not be certain that the correct result was reached, but we agree to let it stand in order to avoid the appearance of unfairness, to conserve judicial resources, and to avoid endless litigation in a world of uncertainties. At the heart of the new English reform is a recalibration of the balance between accuracy and finality: the idea that accuracy is preferable when it can be achieved with minimal appearance of unfairness--or actual unfairness--even after an acquittal. (20)

   1. Double Jeopardy: From England to the United States

      The exact path by which the prohibition on double jeopardy entered English common law is uncertain. (21) Early fundamental documents like the Magna Carta lack a protection against double jeopardy, (22) but by 1300 A.D. English common law recognized four pleas, including former acquittal (sometimes called autrefois acquit (23)), that were very similar to modern double jeopardy. (24) By the 1760s, Blackstone had summarized English double jeopardy jurisprudence in a pithy "universal maxim ... that no man is to be brought into jeopardy of his life more than once for the same offence." (25)

   2. Double Jeopardy in the United States

      Blackstone's "universal maxim" is similar to the "life and limb" phrasing adopted in the Fifth Amendment to the United States Constitution: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." (26) These twenty words have spawned a complicated body of law. The terms "offense" and "life and limb" confine the clause to the area of criminal law, but that is where the straightforwardness ends. The clause begs several key questions: (1) What is jeopardy?; (2) When does it attach?; (3) When does it terminate?; (4) What is a "same offense"?; and (5) When is someone put in jeopardy twice?

      1. What is jeopardy?

         Generally, jeopardy is considered the risk of criminal prosecution; (27) therefore, jeopardy is usually associated only with criminal prosecutions, not civil cases. (28)

      2. When does jeopardy attach?

         Jeopardy must have a beginning, called attachment. Under the law of the United States, during a jury trial, jeopardy attaches when the entire jury is sworn in. (29) In a non-jury trial, jeopardy attaches when the judge begins to hear evidence. (30)

      3. When does jeopardy terminate?

         Jeopardy must also have an ending, called termination. Once jeopardy has attached, retrial is not barred until jeopardy is terminated. (31) The simplest instance of the double jeopardy protection is an acquittal, which almost always terminates jeopardy and triggers double jeopardy protection. (32) A conviction terminates jeopardy when the convicted fails to successfully challenge his conviction. (33) Conviction does not automatically terminate jeopardy because the convicted person can appeal, and the same jeopardy is said to continue during the appellate process. This "continuing jeopardy" theory allows for retrials after mistrials and hung juries. (34) Termination rules calibrate the balance between accuracy and finality; rules to terminate jeopardy represent a policy choice favoring finality over accuracy, while rules to prevent the termination of jeopardy represent the opposite policy choice.

      4. When are two offenses the "same ?"

         Two offenses are the same for double jeopardy purposes if they are (A) based on the same act or transaction; and if they (B) compose the same statutory offense. (35) The Supreme Court applies the Blockburger v. United States "same elements" test to determine which offenses are the same. Blockburger demands "each provision require[] proof of an additional fact which the other does not." (36) Some state courts also follow additional tests, such as the "same evidence" test. (37)

         With a few sensible exceptions, a convicted person cannot be re-prosecuted for any lesser- or greater-included offenses. (38) The general rule protects individuals from multiple government prosecutions on substantially similar issues that would allow the government to perfect its case with each practice and obtain additional punishment for conduct that has been already, if only partially, punished.

      5. When is someone put in jeopardy twice ?

         An acquitted person may still face a civil suit for the same actions of which he has been acquitted. (39) Jeopardy does not exist in civil court because persons do not bear risk "traditionally associated with ... 'criminal punishment to vindicate public justice.'" (40)

         American federalism, with multiple sovereignties among the federal government and the state governments, creates a complication in jeopardy referred to by the shorthand term dual sovereignty. (41) Because states and the federal government derive their respective sovereignties from different sources (42) representing a combined fifty-one distinct sovereign...