Fifth Amendment--Rights of Persons |
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FIFTH AMENDMENT
__________
RIGHTS OF PERSONS
__________
CONTENTS
Page
Indictment by Grand Jury.................................. 1273
Double Jeopardy........................................... 1279
Development and Scope..................................... 1279
Reprosecution Following Mistrial.......................... 1284
Reprosecution Following Acquittal......................... 1288
Acquittal by Jury................................. 1290
Acquittal by the Trial Judge...................... 1290
Trial Court Rulings Terminating Trial Before
Verdict....................................... 1291
Reprosecution Following Conviction........................ 1293
Reprosecution After Reversal on Defendant's Appeal 1293
Sentence Increases................................ 1295
``For the Same Offence''.................................. 1297
Legislative Discretion as to Multiple Sentences... 1297
Successive Prosecutions for ``The Same Offense''.. 1299
The ``Same Transaction'' Problem.................. 1301
Self-Incrimination........................................ 1302
Development and Scope..................................... 1302
The Power to Compel Testimony and Disclosure.............. 1312
Immunity.......................................... 1312
Required Records Doctrine......................... 1315
Reporting and Disclosure.......................... 1317
Confessions: Police Interrogation, Due Process, and Self-
Incrimination......................................... 1321
The Common Law Rule............................... 1322
McNabb-Mallory Doctrine........................... 1323
State Confession Cases............................ 1324
From the Voluntariness Standard to Miranda........ 1327
Miranda v. Arizona................................ 1330
The Operation of the Exclusionary Rule.................... 1340
Supreme Court Review.............................. 1340
Procedure in the Trial Courts..................... 1341
Due Process............................................... 1343
History and Scope......................................... 1343
Scope of the Guaranty............................. 1344
Procedural Due Process.................................... 1347
Generally......................................... 1348
Administrative Proceedings: A Fair Hearing........ 1348
Aliens: Entry and Deportation..................... 1352
Judicial Review of Administrative Proceedings..... 1354
Substantive Due Process................................... 1356
Discrimination.................................... 1356
Congressional Police Measures..................... 1359
Congressional Regulation of Public Utilities...... 1359
Congressional Regulation of Railroads............. 1360
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Taxation.......................................... 1361
Retroactive Taxes................................. 1363
Deprivation of Property: Retroactive Legislation.. 1364
Bankruptcy Legislation............................ 1366
Right to Sue the Government....................... 1367
Congressional Power to Abolish Common Law Judicial
Actions....................................... 1368
Deprivation of Liberty: Economic Legislation...... 1368
National Eminent Domain Power............................. 1369
Overview.......................................... 1369
Public Use........................................ 1371
Just Compensation................................. 1374
Interest.................................. 1376
Rights for Which Compensation Must Be Made 1377
Consequential Damages..................... 1378
Enforcement of Right to Compensation...... 1379
When Property Is Taken............................ 1380
Government Activity Not Directed at the
Property.............................. 1380
Navigable Waters.......................... 1382
Regulatory Takings........................ 1382
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FIFTH AMENDMENT
RIGHTS OF PERSONS
__________
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use,
without just compensation.
INDICTMENT BY GRAND JURY
The history of the grand jury is rooted in the common and civil
law, extending back to Athens, pre-Norman England, and the Assize of
Clarendon promulgated by Henry II.\1\ The right seems to have been first
mentioned in the colonies in the Charter of Liberties and Privileges of
1683, which was passed by the first assembly permitted to be elected in
the colony of New York.\2\ Included from the first in Madison's
introduced draft of the Bill of Rights, the provision elicited no
recorded debate and no opposition. ``The grand jury is an English
institution, brought to this country by the early colonists and
incorporated in the Constitution by the Founders. There is every reason
to believe that our constitutional grand jury was intended to operate
substantially like its English progenitor. The basic purpose of the
English grand jury was to provide a fair method for instituting criminal
proceedings against persons believed to have committed crimes. Grand
jurors were selected from the body of the people and their work was not
hampered by rigid procedural or evidential rules. In fact, grand jurors
could act on their own knowledge and were free to make their
presentments
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or indictments on such information as they deemed satisfactory. Despite
its broad power to institute criminal proceedings the grand jury grew in
popular favor with the years. It acquired an independence in England
free from control by the Crown or judges. Its adoption in our
Constitution as the sole method for preferring charges in serious
criminal cases shows the high place it held as an instrument of justice.
And in this country as in England of old the grand jury has convened as
a body of laymen, free from technical rules, acting in secret, pledged
to indict no one because of prejudice and to free no one because of
special favor.''\3\
\1\Morse, A Survey of the Grand Jury System, 10 Ore. L. Rev. 101
(1931).
\2\1 Bernard Schwartz, The Bill of Rights: A Documentary History
162, 166 (1971). The provision read: ``That in all Cases Capitall or
Criminall there shall be a grand Inquest who shall first present the
offence. . . .''
\3\Costello v. United States, 350 U.S. 359, 362 (1956). ``The
grand jury is an integral part of our constitutional heritage which was
brought to this country with the common law. The Framers, most of them
trained in the English law and traditions, accepted the grand jury as a
basic guarantee of individual liberty; notwithstanding periodic
criticism, much of which is superficial, overlooking relevant history,
the grand jury continues to function as a barrier to reckless or
unfounded charges . . . . Its historic office has been to provide a
shield against arbitrary or oppressive action, by insuring that serious
criminal accusations will be brought only upon the considered judgment
of a representative body of citizens acting under oath and under
judicial instruction and guidance.'' United States v. Mandujano, 425
U.S. 564, 571 (1976) (plurality opinion). See id. at 589-91 (Justice
Brennan concurring).
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The prescribed constitutional function of grand juries in
federal courts\4\ is to return criminal indictments, but the juries
serve a considerably broader series of purposes as well. Principal among
these is the investigative function, which is served through the fact
that grand juries may summon witnesses by process and compel testimony
and the production of evidence generally. Operating in secret, under the
direction but not control of a prosecutor, not bound by many evidentiary
and constitutional restrictions, such juries may examine witnesses in
the absence of their counsel and without informing them of the object of
the investigation or the place of the witnesses in it.\5\ The
exclusionary rule is inapplicable
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in grand jury proceedings, with the result that a witness called before
a grand jury may be questioned on the basis of knowledge obtained
through the use of illegally-seized evidence.\6\ In thus allowing the
use of evidence obtained in violation of the Fourth Amendment, the Court
nonetheless restated the principle that, while free of many rules of
evidence that bind trial courts, grand juries are not unrestrained by
constitutional consideration.\7\ A witness called before a grand jury is
not entitled to be informed that he may be indicted for the offense
under inquiry\8\ and the commission of per
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jury by a witness before the grand jury is punishable, irrespective of
the nature of the warning given him when he appears and regardless of
the fact that he may already be a putative defendant when he is
called.\9\
\4\This provision applies only in federal courts and is not
applicable to the States, either as an element of due process or as a
direct command of the Fourteenth Amendment. Hurtado v. California, 110
U.S. 516 (1884); Palko v. Connecticut, 302 U.S. 319, 323 (1937);
Alexander v. Louisiana, 405 U.S. 625, 633 (1972).
\5\Witnesses are not entitled to have counsel present in the
room. Fed. R. Civ. P. 6(d). The validity of this restriction was
asserted in dictum in In re Groban, 352 U.S. 330, 333 (1957), and
inferentially accepted by the dissent in that case. Id. at 346-47
(Justice Black, distinguishing grand juries from the investigative
entity before the Court). The decision in Coleman v. Alabama, 399 U.S. 1
(1970), deeming the preliminary hearing a ``critical stage of the
prosecution'' at which counsel must be provided, called this rule in
question, inasmuch as the preliminary hearing and the grand jury both
determine whether there is probable cause with regard to a suspect. See
id. at 25 (Chief Justice Burger dissenting). In United States v.
Mandujano, 425 U.S. 564, 581 (1976) (plurality opinion), Chief Justice
Burger wrote: ``Respondent was also informed that if he desired he could
have the assistance of counsel, but that counsel could not be inside the
grand jury room. That statement was plainly a correct recital of the
law. No criminal proceedings had been instituted against respondent,
hence the Sixth Amendment right to counsel had not come into play.'' By
emphasizing the point of institution of criminal proceedings, relevant
to the right of counsel at line-ups and the like, the Chief Justice not
only reasserted the absence of a right to counsel in the room but also,
despite his having referred to it, cast doubt upon the existence of any
constitutional requirement that a grand jury witness be permitted to
consult with counsel out of the room, and, further, raised the
implication that a witness or putative defendant unable to afford
counsel would have no right to appointed counsel. Concurring, Justice
Brennan argued that it was essential and constitutionally required for
the protection of one's constitutional rights that he have access to
counsel, appointed if necessary, accepting the likelihood, without
agreeing, that consultation outside the room would be adequate to
preserve a witness' rights, Id. at 602-09 (with Justice Marshall).
Justices Stewart and Blackmun reserved judgment. Id. at 609. The dispute
appears ripe for revisiting.
\6\United States v. Calandra, 414 U.S. 338 (1974). The Court has
interpreted a provision of federal wiretap law, 18 U.S.C. Sec. 2515, to
prohibit utilization of unlawful wiretap information as a basis for
questioning witnesses before grand juries. Gelbard v. United States, 408
U.S. 41 (1972).
\7\``Of course, the grand jury's subpoena is not unlimited. It
may consider incompetent evidence, but it may not itself violate a valid
privilege, whether established by the Constitution, statutes, or the
common law . . . . Although, for example, an indictment based on
evidence obtained in violation of a defendant's Fifth Amendment
privilege is nevertheless valid . . . , the grand jury may not force a
witness to answer questions in violation of that constitutional
guarantee. . . . Similarly, a grand jury may not compel a person to
produce books and papers that would incriminate him. . . . The grand
jury is also without power to invade a legitimate privacy interest
protected by the Fourth Amendment. A grand jury's subpoena duces tecum
will be disallowed if it is `far too sweeping in its terms to be
regarded as reasonable under the Fourth Amendment.' Hale v. Henkel, 201
U.S. 43, 76 (1906). Judicial supervision is properly exercised in such
cases to prevent the wrong before it occurs.'' United States v.
Calandra, 414 U.S. 338, 346 (1974). See also United States v. Dionisio,
410 U.S. 1, 11-12 (1973). Grand juries must operate within the limits of
the First Amendment and may not harass the exercise of speech and press
rights. Branzburg v. Hayes, 408 U.S. 665, 707-08 (1972). Protection of
Fourth Amendment interests is as extensive before the grand jury as
before any investigative officers, Silverthorne Lumber Co. v. United
States, 251 U.S. 385 (1920) (now highly qualified as to its scope,
supra, p. 1265); Hale v. Henkel, 201 U.S. 43, 76-77 (1920), but not more
so either. United States v. Dionisio, 410 U.S. 1 (1973) (subpoena to
give voice exemplars); United States v. Mara, 410 U.S. 19 (1973)
(handwriting exemplars). The Fifth Amendment's self-incrimination clause
must be respected. Blau v. United States, 340 U.S. 159 (1950); Hoffman
v. United States, 341 U.S. 479 (1951). On common-law privileges, see
Blau v. United States, 340 U.S. 332 (1951) (husband-wife privilege);
Alexander v. United States, 138 U.S. 353 (1891) (attorney-client
privilege). The traditional secrecy of grand jury proceedings has been
relaxed a degree to permit a limited discovery of testimony. Compare
Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959), with
Dennis v. United States, 384 U.S. 855 (1966). See Fed. R. Crim. P. 6(e)
(secrecy requirements and exceptions).
\8\United States v. Washington, 431 U.S. 181 (1977). Because
defendant when he appeared before the grand jury was warned of his
rights to decline to answer questions on the basis of self-
incrimination, the decision was framed in terms of those warnings, but
the Court twice noted that it had not decided, and was not deciding,
``whether any Fifth Amendment warnings whatever are constitutionally
required for grand jury witnesses. . . .'' Id. at 186, 190.
\9\United States v. Mandujano, 425 U.S. 564 (1976); United
States v. Wong, 431 U.S. 174 (1977). Mandujano had been told of his
right to assert the privilege against self-incrimination, of the
consequences of perjury, and of his right to counsel, but not to have
counsel with him in the jury room. Chief Justice Burger and Justices
White, Powell, and Rehnquist took the position that no Miranda warning
was required because there was no police custodial interrogation and
that in any event commission of perjury was not excusable on the basis
of lack of any warning. Justices Brennan, Marshall, Stewart, and
Blackmun agreed that whatever rights a grand jury witness had, perjury
was punishable and not to be excused. Id. at 584, 609. Wong was assumed
on appeal not to have understood the warnings given her and the opinion
proceeds on the premise that absence of warnings altogether does not
preclude a perjury prosecution.
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Of greater significance were two cases in which the Court held
the Fourth Amendment to be inapplicable to grand jury subpoenas
requiring named parties to give voice exemplars and handwriting samples
to the grand jury for identification purposes.\10\ According to the
Court, the issue turned upon a two-tiered analysis--''whether either the
initial compulsion of the person to appear before the grand jury, or the
subsequent directive to make a voice recording is an unreasonable
`seizure' within the meaning of the Fourth Amendment.''\11\ First, a
subpoena to appear was held not to be a seizure, because it entailed
significantly less social and personal affront than did an arrest or an
investigative stop, and because every citizen has an obligation, which
may be onerous at times, to appear and give whatever aid he may to a
grand jury.\12\ Second, the directive to make a voice recording or to
produce handwriting samples did not bring the Fourth Amendment into play
because no one has any expectation of privacy in the characteristics of
either his voice or his handwriting.\13\ Inasmuch as the Fourth
Amendment was inapplicable, there was no necessity for the government to
make a preliminary showing of the reasonableness of the grand jury
requests.
\10\United States v. Dionisio, 410 U.S. 1 (1973); United States
v. Mara, 410 U.S. 19 (1973).
\11\Id. at 9.
\12\Id. at 9-13.
\13\Id. at 13-15. The privacy rationale proceeds from Katz v.
United States, 389 U.S. 347 (1967).
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Besides indictments, grand juries may also issue reports which
may indicate nonindictable misbehavior, mis- or malfeasance of
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public officers, or other objectionable conduct.\14\ Despite the vast
power of grand juries, there is little in the way of judicial or
legislative response designed to impose some supervisory restrictions on
them.\15\
\14\The grand jury ``is a grand inquest, a body with powers of
investigation and inquisition, the scope of whose inquiries is not to be
limited narrowly by questions of propriety or forecasts of whether any
particular individual will be found properly subject to an accusation of
crime.'' Blair v. United States, 250 U.S. 273, 281 (1919). On the
reports function of the grand jury, see In re Grand Jury January, 1969,
315 F. Supp. 662 (D. Md. 1970), and Report of the January 1970 Grand
Jury (Black Panther Shooting) (N.D. Ill., released May 15, 1970).
Congress has now specifically authorized issuance of reports in cases
concerning public officers and organized crime. 18 U.S.C. Sec. 333.
\15\Congress has required that in the selection of federal grand
juries, as well as petit juries, random selection of a fair cross
section of the community is to take place, and has provided a procedure
for challenging discriminatory selection by moving to dismiss the
indictment. 28 U.S.C. Sec. Sec. 1861-68. Racial discrimination in
selection of juries is constitutionally proscribed in both state and
federal courts. Infra, pp.1854-57.
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Within the meaning of this article a crime is made ``infamous''
by the quality of the punishment which may be imposed.\16\ ``What
punishments shall be considered as infamous may be affected by the
changes of public opinion from one age to another.''\17\ Imprisonment in
a state prison or penitentiary, with or without hard labor,\18\ or
imprisonment at hard labor in the workhouse of the District of
Columbia,\19\ falls within this category. The pivotal question is
whether the offense is one for which the court is authorized to award
such punishment; the sentence actually imposed is immaterial. When an
accused is in danger of being subjected to an infamous punishment if
convicted, he has the right to insist that he shall not be put upon his
trial, except on the accusation of a grand jury.\20\ Thus, an act which
authorized imprisonment at hard labor for one year, as well as
deportation, of Chinese aliens found to be unlawfully within the United
States, created an offense which could be tried only upon
indictment.\21\ Counterfeiting,\22\ fraudulent alteration of poll
books,\23\ fraudulent voting,\24\ and embezzlement,\25\ have been
declared to be infamous crimes. It is immaterial how Congress has
classified the offense.\26\ An act punishable by a fine of not more than
$1,000 or imprisonment for not more than six
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months is a misdemeanor, which can be tried without indictment, even
though the punishment exceeds that specified in the statutory definition
of ``petty offenses.''\27\
\16\Ex parte Wilson, 114 U.S. 417 (1885).
\17\Id. at 427.
\18\Mackin v. United States, 117 U.S. 348, 352 (1886).
\19\United States v. Moreland, 258 U.S. 433 (1922).
\20\Ex parte Wilson, 114 U.S. 417, 426 (1885).
\21\Wong Wing v. United States, 163 U.S. 228, 237 (1896).
\22\Ex parte Wilson, 114 U.S. 417 (1885).
\23\Mackin v. United States, 117 U.S. 348 (1886).
\24\Parkinson v. United States, 121 U.S. 281 (1887).
\25\United States v. DeWalt, 128 U.S. 393 (1888).
\26\Ex parte Wilson, 114 U.S. 417, 426 (1885).
\27\Duke v. United States, 301 U.S. 492 (1937).
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A person can be tried only upon the indictment as found by the
grand jury, and especially upon its language found in the charging part
of the instrument.\28\ A change in the indictment that does not narrow
its scope deprives the court of the power to try the accused.\29\ While
additions to offenses alleged in an indictment are prohibited, the Court
has now ruled that it is permissible ``to drop from an indictment those
allegations that are unnecessary to an offense that is clearly contained
within it,'' as, e.g., a lesser included offense.\30\ There being no
constitutional requirement that an indictment be presented by a grand
jury in a body, an indictment delivered by the foreman in the absence of
other grand jurors is valid.\31\ If valid on its face, an indictment
returned by a legally constituted, non-biased grand jury satisfies the
requirement of the Fifth Amendment and is enough to call for a trial on
the merits; it is not open to challenge on the ground that there was
inadequate or incompetent evidence before the grand jury.\32\
\28\See Stirone v. United States, 361 U.S. 212 (1960), wherein a
variation between pleading and proof was held to deprive petitioner of
his right to be tried only upon charges presented in the indictment.
\29\Ex parte Bain, 121 U.S. 1, 12 (1887). Ex parte Bain was
overruled in United States v. Miller, 471 U.S. 130 (1985), to the extent
that it held that a narrowing of an indictment is impermissible.
\30\United States v. Miller, 471 U.S. 130, 144 (1985).
\31\Breese v. United States, 226 U.S. 1 (1912).
\32\Costello v. United States, 350 U.S. 359 (1956); Lawn v.
United States, 355 U.S. 339 (1958); United States v. Blue, 384 U.S. 251
(1966). Cf. Gelbard v. United States, 408 U.S. 41 (1972).
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The protection of indictment by grand jury extends to all
persons except those serving in the armed forces. All persons in the
regular armed forces are subject to court martial rather than grand jury
indictment or trial by jury.\33\ The exception's limiting words ``when
in actual service in time of war or public danger'' apply only to
members of the militia, not to members of the regular armed forces. In
O'Callahan v. Parker, the Court in 1969 held that offenses that are not
``service connected'' may not be punished under military law, but
instead must be tried in the civil courts in the jurisdiction where the
acts took place.\34\ This decision was overruled, however, in 1987, the
Court emphasizing the ``plain lan
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guage'' of Art. I, Sec. 8, cl. 14,\35\ and not directly addressing any
possible limitation stemming from the language of the Fifth
Amendment.\36\ ``The requirements of the Constitution are not violated
where . . . a court-martial is convened to try a serviceman who was a
member of the armed services at the time of the offense charged.''\37\
Even under the service connection rule, it was held that offenses
against the laws of war, whether committed by citizens or by alien enemy
belligerents, could be tried by a military commission.\38\
\33\Johnson v. Sayre, 158 U.S. 109, 114 (1895). See also Lee v.
Madigan, 358 U.S. 228, 232-35, 241 (1959).
\34\395 U.S. 258 (1969); see also Relford v. Commandant, 401
U.S. 355 (1971) (offense committed on military base against persons
lawfully on base was service connected). But courts-martial of civilian
dependents and discharged servicemen have been barred. Id. See supra,
pp.316-19.
\35\This clause confers power on Congress to ``make rules for
the government and regulation of the land and naval forces.''
\36\Solorio v. United States, 483 U.S. 435 (1987). A 5-4
majority favored overruling O'Callahan: Chief Justice Rehnquist's
opinion for the Court was joined by Justices White, Powell, O'Connor,
and Scalia. Justice Stevens concurred in the judgment but thought it
unnecessary to reexamine O'Callahan. Dissenting Justice Marshall, joined
by Justices Brennan and Blackmun, thought the service connection rule
justified by the language of the Fifth Amendment's exception, based on
the nature of cases (those ``arising in the land or naval forces'')
rather than the status of defendants.
\37\Id. at 450-51.
\38\Ex parte Quirin, 317 U.S. 1, 43, 44 (1942).
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DOUBLE JEOPARDY
Development and Scope
``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 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.''\39\ The
concept of double jeopardy goes far back in history, but its development
was uneven and its meaning has varied. The English development, under
the influence of Coke and Blackstone, came gradually to mean that a
defendant at trial could plead former conviction or former acquittal as
a special plea in bar to defeat the prosecution.\40\ In this country,
the
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common-law rule was in some cases limited to this rule and in other
cases extended to bar a new trial even though the former trial had not
concluded in either an acquittal or a conviction. The rule's elevation
to fundamental status by its inclusion in several state bills of rights
following the Revolution continued the differing approaches.\41\
Madison's version of the guarantee as introduced in the House of
Representatives read: ``No person shall be subject, except in cases of
impeachment, to more than one punishment or trial for the same
offense.''\42\ Opposition in the House proceeded on the proposition that
the language could be construed to prohibit a second trial after a
successful appeal by a defendant and would therefore either constitute a
hazard to the public by freeing the guilty or, more likely, result in a
detriment to defendants because appellate courts would be loath to
reverse convictions if no new trial could follow, but a motion to strike
``or trial'' from the clause failed.\43\ As approved by the Senate,
however, and accepted by the House for referral to the States, the
present language of the clause was inserted.\44\
\39\Green v. United States, 355 U.S. 184, 187-88 (1957). The
passage is often approvingly quoted by the Court. E.g., Crist v. Bretz,
437 U.S. 28, 35 (1978); United States v. DiFrancesco, 449 U.S. 117, 127-
28 (1980). For a comprehensive effort to assess the purposes of
application of the clause, see Westen & Drubel, Toward a General Theory
of Double Jeopardy, 1978 Sup. Ct. Rev. 81.
\40\M. Friedland, Double Jeopardy (1969), part 1; Crist v.
Bretz, 437 U.S. 28, 32-36 (1978), and id. at 40 (Justice Powell
dissenting); United States v. Wilson, 420 U.S. 332, 340 (1975).
\41\J. Sigler, Double Jeopardy--The Development of a Legal and
Social Policy 21-27 (1969). The first bill of rights which expressly
adopted a double jeopardy clause was the New Hampshire Constitution of
1784. ``No subject shall be liable to be tried, after an acquittal, for
the same crime or offence.'' Art. I, Sec. XCI, 4 F. Thorpe, The Federal
and State Constitution, reprinted in H.R. Doc. No. 357, 59th Congress,
2d Sess. 2455 (1909). A more comprehensive protection was included in
the Pennsylvania Declaration of Rights of 1790, which had language
almost identical to the present Fifth Amendment provision. Id. at 3100.
\42\1 Annals of Congress 434 (June 8, 1789).
\43\Id. at 753.
\44\2 Bernard Schwartz, The Bill of Rights: A Documentary
History 1149, 1165 (1971). In Crist v. Bretz, 437 U.S. 28, 40 (1978)
(dissenting), Justice Powell attributed to inadvertence the broadening
of the ``rubric'' of double jeopardy to incorporate the common law rule
against dismissal of the jury prior to verdict, a question the majority
passed over as being ``of academic interest only.'' Id. at 34 n.10.
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Throughout most of its history, this clause was binding only
against the Federal Government. In Palko v. Connecticut,\45\ the Court
rejected an argument that the Fourteenth Amendment incorporated all the
provisions of the first eight Amendments as limitations on the States
and enunciated the due process theory under which most of those
Amendments do now apply to the States. Some guarantees in the Bill of
Rights, Justice Cardozo wrote, were so fundamental that they are ``of
the very essence of the scheme of ordered liberty'' and ``neither
liberty nor justice would exist if they were sacrificed.''\46\ But the
double jeopardy clause, like many other procedural rights of defendants,
was not so fundamental; it could be absent and fair trials could still
be had. Of course, a defendant's due process rights, absent double
jeopardy consideration per se,
[[Page 1281]]
might be violated if the State ``creat[ed] a hardship so acute and
shocking as to be unendurable,'' but that was not the case in Palko.\47\
In Benton v. Maryland,\48\ however, the Court concluded ``that the
double jeopardy prohibition . . . represents a fundamental ideal in our
constitutional heritage. . . . Once it is decided that a particular Bill
of Rights guarantee is `fundamental to the American scheme of justice,'
. . . the same constitutional standards apply against both the State and
Federal Governments.'' Therefore, the double jeopardy limitation now
applies to both federal and state governments and state rules on double
jeopardy, with regard to such matters as when jeopardy attaches, must be
considered in the light of federal standards.\49\
\45\302 U.S. 319 (1937).
\46\Id. at 325, 326.
\47\Id. at 328.
\48\395 U.S. 784, 794-95 (1969).
\49\Crist v. Bretz, 437 U.S. 28, 37-38 (1978). But see id. at 40
(Justices Powell and Rehnquist and Chief Justice Burger dissenting)
(standard governing States should be more relaxed).
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In a federal system, different units of government may have
different interests to serve in the definition of crimes and the
enforcement of their laws, and where the different units have
overlapping jurisdictions a person may engage in conduct that will
violate the laws of more than one unit.\50\ Although the Court had long
accepted in dictum the principle that prosecution by two governments of
the same defendant for the same conduct would not constitute double
jeopardy,\51\ it was not until United States v. Lanza\52\ that the
conviction in federal court of a person previously convicted in a state
court for performing the same acts was sustained. ``We have here two
sovereignties, deriving power from different sources, capable of dealing
with the same subject-matter within the same territory . . . Each
government in determining what shall be an offense against its peace and
dignity is exercising its own sovereignty, not that of the other.''\53\
The ``dual sovereignty'' doctrine is not only tied into the existence of
two sets of laws often serving different federal-state purposes and the
now overruled principle that the double jeopardy clause restricts only
the national government and not the States,\54\ but it also reflects
practical considerations that undesirable consequences could follow an
overruling of
[[Page 1282]]
the doctrine. Thus, a State might preempt federal authority by first
prosecuting and providing for a lenient sentence (as compared to the
possible federal sentence) or acquitting defendants who had the sympathy
of state authorities as against federal law enforcement.\55\ The
application of the clause to the States has therefore worked no change
in the ``dual sovereign'' doctrine.\56\ Of course, when in fact two
different units of the government are subject to the same sovereign, the
double jeopardy clause does bar separate prosecutions by them for the
same offense.\57\ The dual sovereignty doctrine has also been applied to
permit successive prosecutions by two states for the same conduct.\58\
\50\The problem was recognized as early as Houston v. Moore, 18
U.S. (5 Wheat.) 1 (1820), and the rationale of the doctrine was
confirmed within thirty years. Fox v. Ohio, 46 U.S. (5 How.) 410 (1847);
United States v. Marigold, 50 U.S. (9 How.) 560 (1850); Moore v.
Illinois, 55 U.S. (14 How.) 13 (1852).
\51\Id. And see cases cited in Bartkus v. Illinois, 359 U.S.
121, 132 n.19 (1959), and Abbate v. United States, 359 U.S. 187, 192-93
(1959).
\52\260 U.S. 377 (1922).
\53\Id. at 382. See also Hebert v. Louisiana, 272 U.S. 312
(1924); Screws v. United States, 325 U.S. 91, 108 (1945); Jerome v.
United States, 318 U.S. 101 (1943).
\54\Benton v. Maryland, 395 U.S. 784 (1969), extended the clause
to the States.
\55\Reaffirmation of the doctrine against double jeopardy claims
as to the Federal Government and against due process claims as to the
States occurred in Abbate v. United States, 359 U.S. 187 (1959), and
Bartkus v. Illinois, 359 U.S. 121 (1959), both cases containing
extensive discussion and policy analyses. The Justice Department follows
a policy of generally not duplicating a state prosecution brought and
carried out in good faith, see Petite v. United States, 361 U.S. 529,
531 (1960); Rinaldi v. United States, 434 U.S. 22 (1977), and several
provisions of federal law forbid a federal prosecution following a state
prosecution. E.g., 18 U.S.C. Sec. Sec. 659, 660, 1992, 2117. The Brown
Commission recommended a general statute to this effect, preserving
discretion in federal authorities to proceed upon certification by the
Attorney General that a United States interest would be unduly harmed if
there were no federal prosecution. National Commission on Reform of
Federal Criminal Laws, Final Report 707 (1971).
\56\United States v. Wheeler, 435 U.S. 313 (1978) (dual
sovereignty doctrine permits federal prosecution of an Indian for
statutory rape following his plea of guilty in a tribal court to
contributing to the delinquency of a minor, both charges involving the
same conduct; tribal law stemmed from the retained sovereignty of the
tribe and did not flow from the Federal Government).
\57\Grafton v. United States, 206 U.S. 333 (1907) (trial by
military court-martial precluded subsequent trial in territorial court);
Waller v. Florida, 397 U.S. 387 (1970) (trial by municipal court
precluded trial for same offense by state court). It was assumed in an
early case that refusal to answer questions before one House of Congress
could be punished as a contempt by that body and by prosecution by the
United States under a misdemeanor statute, In re Chapman, 166 U.S. 661,
672 (1897), but there had been no dual proceedings in that case and it
seems highly unlikely that the case would now be followed. Cf. Colombo
v. New York, 405 U.S. 9 (1972).
\58\Heath v. Alabama, 474 U.S. 82 (1985) (defendant crossed
state line in course of kidnap murder, was prosecuted for murder in both
states).
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The clause speaks of being put in ``jeopardy of life or limb,''
which as derived from the common law, generally referred to the
possibility of capital punishment upon conviction, but it is now settled
that the clause protects with regard ``to every indictment or
information charging a party with a known and defined crime or
misdemeanor, whether at the common law or by statute.''\59\ Despite the
Clause's literal language, it can apply as well to sanctions that
[[Page 1283]]
are civil in form if they clearly are applied in a manner that
constitutes ``punishment.''\60\
\59\Ex parte Lange, 85 U.S. (18 Wall.) 163, 169 (1874). The
clause generally has no application in noncriminal proceedings.
Helvering v. Mitchell, 303 U.S. 391 (1938); One Lot Emerald Cut Stones
v. United States, 409 U.S. 232 (1972) (forfeiture proceedings; one must
ask whether the proceedings are remedial or punitive).
\60\The clause applies in juvenile court proceedings which are
formally civil. Breed v. Jones, 421 U.S. 519 (1975). See also United
States v. Halper, 490 U.S. 435 (1989) (civil penalty under the False
Claims Act constitutes punishment if it is overwhelmingly
disproportionate to compensating the government for its loss, and if it
can be explained only as serving retributive or deterrent purposes);
United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) (in
determining whether a forfeiture proceeding is remedial or punitive,
congressional preference for a civil sanction will be overridden only by
``the clearest proof'' to the contrary).
---------------------------------------------------------------------------
Because one prime purpose of the clause is the protection
against the burden of multiple trials, a defendant who raises and loses
a double jeopardy claim during pretrial or trial may immediately appeal
the ruling, a rare exception to the general rule prohibiting appeals
from nonfinal orders.\61\
\61\Abney v. United States, 431 U.S. 651 (1977).
---------------------------------------------------------------------------
During the 1970s especially, the Court decided an uncommonly
large number of cases raising double jeopardy claims.\62\ Instead of the
clarity that often emerges from intense consideration of a particular
issue, however, double jeopardy doctrine has descended into a state of
``confusion,'' with the Court acknowledging that its decisions ``can
hardly be characterized as models of consistency and clarity.''\63\ In
large part, the re-evaluation of doctrine and principle has not resulted
in the development of clear and consistent guidelines because of the
differing emphases of the Justices upon the purposes of the clause and
the consequent shifting coalition of majorities based on highly
technical distinctions and individualistic fact patterns. Thus, some
Justices have expressed the belief that the purpose of the clause is
only to protect final judgments relating to culpability, either of
acquittal or conviction, and that English common law rules designed to
protect the defendant's right to go to the first jury picked had early
in our jurisprudence become confused with the double jeopardy clause.
While they accept the present understanding, they do so as part of the
Court's superintending of the federal courts and not because the
understanding is part and parcel of the clause; in so doing, of course,
they are likely to find more prosecutorial discretion in the trial
process.\64\ Oth
[[Page 1284]]
ers have expressed the view that the clause not only protects the
integrity of final judgments but, more important, that it protects the
accused against the strain and burden of multiple trials, which would
also enhance the ability of government to convict.\65\ Still other
Justices have engaged in a form of balancing of defendants' rights with
society's rights to determine when reprosecution should be permitted
when a trial ends prior to a final judgment not hinged on the
defendant's culpability.\66\ Thus, the basic area of disagreement,
though far from the only one, centers on the trial from the attachment
of jeopardy to the final judgment.
\62\See United States v. DiFrancesco, 449 U.S. 117, 126-27
(1980) (citing cases).
\63\Burks v. United States, 437 U.S. 1, 9, 15 (1978). One result
is instability in the law. Thus, Burks overruled, to the extent
inconsistent, four cases decided between 1950 and 1960, and United
States v. Scott, 437 U.S. 82 (1978), overruled a case decided just three
years earlier, United States v. Jenkins, 420 U.S. 358 (1975).
\64\See Crist v. Bretz, 437 U.S. 28, 40 (1978) (dissenting
opinion). Justice Powell, joined by Chief Justice Burger and Justice
Rehnquist, argued that with the double jeopardy clause so interpreted
the due process clause could be relied on to prevent prosecutorial abuse
during the trial designed to abort the trial and obtain a second one.
Id. at 50. All three have joined, indeed, in some instances, have
authored, opinions adverting to the role of the double jeopardy clause
in protecting against such prosecutorial abuse. E.g., United States v.
Scott, 437 U.S 82, 92-94 (1978); Oregon v. Kennedy, 456 U.S. 667 (1982)
(but narrowing scope of concept).
\65\United States v. Scott, 437 U.S. 82, 101 (1978) (dissenting
opinion) (Justices Brennan, White, Marshall, and Stevens).
\66\Thus, Justice Blackmun has enunciated positions recognizing
a broad right of defendants much like the position of the latter three
Justices, Crist v. Bretz, 437 U.S. 28, 38 (1978) (concurring), and he
joined Justice Stevens' concurrence in Oregon v. Kennedy, 456 U.S. 667,
681 (1982), but he also joined the opinions in United States v. Scott,
437 U.S. 82 (1978), and Arizona v. Washington, 434 U.S. 497 (1978)
(Justice Blackmun concurring only in the result).
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Reprosecution Following Mistrial
The common law generally required that the previous trial must
have ended in a judgment, of conviction or acquittal, but the
constitutional rule is that jeopardy attaches much earlier, in jury
trials when the jury is sworn, and in trials before a judge without a
jury, when the first evidence is presented.\67\ Therefore, if after
jeopardy attaches the trial is terminated for some reason, it may be
that a second trial, even if the termination was erroneous, is
barred.\68\ The reasons the Court has given for fixing the attach
[[Page 1285]]
ment of jeopardy at a point prior to judgment and thus making some
terminations of trials before judgment final insofar as the defendant is
concerned is that a defendant has a ``valued right to have his trial
completed by a particular tribunal.''\69\ The reason the defendant's
right is so ``valued'' is that he has a legitimate interest in
completing the trial ``once and for all'' and ``conclud[ing] his
confrontation with society,''\70\ so as to be spared the expense and
ordeal of repeated trials, the anxiety and insecurity of having to live
with the possibility of conviction, and the possibility that the
prosecution may strengthen its case with each try as it learns more of
the evidence and of the nature of the defense.\71\ These reasons both
inform the determination when jeopardy attaches and the evaluation of
the permissibility of retrial depending upon the reason for a trial's
premature termination.
\67\The rule traces back to United States v. Perez, 22 U.S. (9
Wheat.) 579 (1824). See also Kepner v. United States, 195 U.S. 100
(1904); Downum v. United States, 372 U.S. 734 (1963) (trial terminated
just after jury sworn but before any testimony taken). In Crist v.
Bretz, 437 U.S. 28 (1978), the Court held this standard of the
attachment of jeopardy was ``at the core'' of the clause and it
therefore binds the States. But see id. at 40 (Justice Powell
dissenting). An accused is not put in jeopardy by preliminary
examination and discharge by the examining magistrate, Collins v.
Loisel, 262 U.S. 426 (1923), by an indictment which is quashed, Taylor
v. United States, 207 U.S. 120, 127 (1907), or by arraignment and
pleading to the indictment. Bassing v. Cady, 208 U.S. 386, 391-92
(1908). A defendant may be tried after preliminary proceedings that
present no risk of final conviction. E.g., Ludwig v. Massachusetts, 427
U.S. 618, 630-32 (1976) (conviction in prior summary proceeding does not
foreclose trial in a court of general jurisdiction, where defendant has
absolute right to demand a trial de novo and thus set aside the first
conviction); Swisher v. Brady, 438 U.S. 204 (1978) (double jeopardy not
violated by procedure under which masters hear evidence and make
preliminary recommendations to juvenile court judge, who may confirm,
modify, or remand).
\68\Cf. United States v. Jorn, 400 U.S. 470 (1971); Downum v.
United States, 372 U.S. 734 (1963). ``Even if the first trial is not
completed, a second prosecution may be grossly unfair. It increases the
financial and emotional burden on the accused, prolongs the period in
which he is stigmatized by an unresolved accusation of wrongdoing, and
may even enhance the risk that an innocent defendant may be convicted.
The danger of such unfairness to the defendant exists whenever a trial
is aborted before it is completed. Consequently, as a general rule, the
prosecutor is entitled to one, and only one, opportunity to require an
accused to stand trial.'' Arizona v. Washington, 434 U.S. 497, 503-05
(1978).
\69\Wade v. Hunter, 336 U.S. 684, 689 (1949).
\70\United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality
opinion).
\71\Arizona v. Washington, 434 U.S. 497, 503-05 (1978); Crist v.
Bretz, 437 U.S. 28, 35-36 (1978). See Westen & Drubel, Toward a General
Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 86-97.
---------------------------------------------------------------------------
A mistrial may be the result of ``manifest necessity,''\72\ such
as where, for example, the jury cannot reach a verdict\73\ or
circumstances plainly prevent the continuation of the trial.\74\
Difficult has been the answer, however, when the doctrine of ``manifest
necessity'' has been called upon to justify a second trial following a
mistrial granted by the trial judge because of some event within the
prosecutor's control or because of prosecutorial misconduct or because
of error or abuse of discretion by the judge himself. There must
ordinarily be a balancing of the defendant's right in having the trial
completed against the public interest in fair trials designed to end in
just judgments.\75\ Thus, when, after jeopardy attached, a mistrial was
granted because of a defective indictment, the Court held that retrial
was not barred; a trial judge ``properly exercises his discretion'' in
cases in which an impartial verdict cannot be reached or in which a
verdict on conviction would have to be reversed on appeal because of an
obvious error. ``If an error
[[Page 1286]]
could make reversal on appeal a certainty, it would not serve `the ends
of public justice' to require that the Government proceed with its proof
when, if it succeeded before the jury, it would automatically be
stripped of that success by an appellate court.''\76\ On the other hand,
when, after jeopardy attached, a prosecutor successfully moved for a
mistrial because a key witness had inadvertently not been served and
could not be found, the Court held a retrial barred, because the
prosecutor knew prior to the selection and swearing of the jury that the
witness was unavailable.\77\ Although this case appeared to establish
the principle that an error of the prosecutor or of the judge leading to
a mistrial could not constitute a ``manifest necessity'' for terminating
the trial, Somerville distinguished and limited Downum to situations in
which the error lends itself to prosecutorial manipulation, in being the
sort of instance which the prosecutor could use to abort a trial that
was not proceeding successfully and to obtain a new trial in which his
advantage would be increased.\78\
\72\United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).
\73\Id.; Logan v. United States, 144 U.S. 263 (1892).
\74\Simmons v. United States, 142 U.S. 148 (1891) (juror's
impartiality became questionable during trial); Thompson v. United
States, 155 U.S. 271 (1884) (discovery during trial that one of the
jurors had served on the grand jury which indicted defendant and was
therefore disqualified); Wade v. Hunter, 336 U.S. 684 (1949) (court-
martial discharged because enemy advancing on site).
\75\Illinois v. Somerville, 410 U.S. 458, 463 (1973).
\76\Id. at 464.
\77\Downum v. United States, 372 U.S. 734 (1963).
\78\Illinois v. Somerville, 410 U.S. 458, 464-65, 468-69 (1973).
---------------------------------------------------------------------------
Another kind of case arises when the prosecutor moves for
mistrial because of prejudicial misconduct by the defense. In Arizona v.
Washington,\79\ defense counsel in his opening statement made
prejudicial comments about the prosecutor's past conduct, and the
prosecutor's motion for a mistrial was granted over defendant's
objections. The Court ruled that retrial was not barred by double
jeopardy. Granting that in a strict, literal sense, mistrial was not
``necessary'' because the trial judge could have given limiting
instructions to the jury, the Court held that the highest degree of
respect should be given to the trial judge's evaluation of the
likelihood of the impairment of the impartiality of one or more jurors.
As long as support for a mistrial order can be found in the trial
record, no specific statement of ``manifest necessity'' need be made by
the trial judge.\80\
\79\434 U.S. 497 (1978).
\80\``Manifest necessity'' characterizes the burden the
prosecutor must shoulder in justifying retrial. Id. at 505-06. But
``necessity'' cannot be interpreted literally; it means rather a ``high
degree'' of necessity, and some instances, such as hung juries, easily
meet that standard. Id. at 506-07. In a situation like that presented in
this case, great deference must be paid to the trial judge's decision
because he was in the best position to determine the extent of the
possible bias, having observed the jury's response, and to respond by
the course he deems best suited to deal with it. Id. at 510-14. Here,
``the trial judge acted responsibly and deliberately, and accorded
careful consideration to respondent's interest in having the trial
concluded in a single proceeding. [H]e exercised `sound discretion'.
. . .'' Id. at 516.
---------------------------------------------------------------------------
Emphasis upon the trial judge's discretion has an impact upon
the cases in which it is the judge's error, in granting sua sponte a
[[Page 1287]]
mistrial or granting the prosecutor's motion. The cases are in doctrinal
disarray. Thus, in Gori v. United States,\81\ the Court permitted
retrial of the defendant when the trial judge had, on his own motion and
with no indication of the wishes of defense counsel, declared a mistrial
because he thought the prosecutor's line of questioning was intended to
expose the defendant's criminal record, which would have constituted
prejudicial error. Although the Court thought the judge's action was an
abuse of discretion, it approved retrial on the conclusion that the
judge's decision had been taken for defendant's benefit. This rationale
was disapproved in the next case, in which the trial judge discharged
the jury erroneously and in abuse of his discretion, because he
disbelieved the prosecutor's assurance that certain witnesses had been
properly apprised of their constitutional rights.\82\ Refusing to permit
retrial, the Court observed that the ``doctrine of manifest necessity
stands as a command to trial judges not to foreclose the defendant's
option [to go to the first jury and perhaps obtain an acquittal] until a
scrupulous exercise of judicial discretion leads to the conclusion that
the ends of public justice would not be served by a continuation of the
proceedings.''\83\ The later cases appear to accept Jorn as an example
of a case where the trial judge ``acts irrationally or irresponsibly.''
But if the trial judge acts deliberately, giving prosecution and defense
the opportunity to explain their positions, and according respect to
defendant's interest in concluding the matter before the one jury, then
he is entitled to deference. This approach perhaps rehabilitates the
result if not the reasoning in Gori and maintains the result and much of
the reasoning of Jorn.\84\
\81\367 U.S. 364 (1961). See also United States v. Tateo, 377
U.S. 463 (1964) (reprosecution permitted after the setting aside of a
guilty plea found to be involuntary because of coercion by the trial
judge).
\82\United States v. Jorn, 400 U.S. 470, 483 (1971).
\83\Id. at 485. The opinion of the Court was by a plurality of
four, but two other Justices joined it after first arguing that
jurisdiction was lacking to hear the Government's appeal.
\84\Arizona v. Washington, 434 U.S. 497, 514, 515-16 (1978). See
also Illinois v. Somerville, 410 U.S. 458, 462, 465-66, 469-71 (1973)
(discussing Gori and Jorn.)
---------------------------------------------------------------------------
Of course, ``a motion by the defendant for mistrial is
ordinarily assumed to remove any barrier to reprosecution, even if the
defendant's motion is necessitated by a prosecutorial or judicial
error.''\85\ ``Such a motion by the defendant is deemed to be a
deliberate election on his part to forgo his valued right to have his
guilt or innocence determined before the first trier of fact.''\86\ In
United States v. Dinitz,\87\ the trial judge had excluded defendant's
principal at
[[Page 1288]]
torney for misbehavior and had then given defendant the option of recess
while he appealed the exclusion, a mistrial, or continuation with an
assistant defense counsel. Holding that the defendant could be retried
after he chose a mistrial, the Court reasoned that, while the exclusion
might have been in error, it was not done in bad faith to goad the
defendant into requesting a mistrial or to prejudice his prospects for
acquittal. The defendant's choice, even though difficult, to terminate
the trial and go on to a new trial should be respected and a new trial
not barred. To hold otherwise would necessitate requiring the defendant
to shoulder the burden and anxiety of proceeding to a probable
conviction followed by an appeal, which if successful would lead to a
new trial, and neither the public interest nor defendant's interests
would thereby be served.
\85\United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality
opinion).
\86\United States v. Scott, 437 U.S. 82, 93 (1978).
\87\424 U.S. 600 (1976). See also Lee v. United States, 432 U.S.
23 (1977) (defendant's motion to dismiss because the information was
improperly drawn made after opening statement and renewed at close of
evidence was functional equivalent of mistrial and when granted did not
bar retrial, Court emphasizing that defendant by his timing brought
about foreclosure of opportunity to stay before the same trial).
---------------------------------------------------------------------------
But the Court has also reserved the possibility that the
defendant's motion might be necessitated by prosecutorial or judicial
overreaching motivated by bad faith or undertaken to harass or
prejudice, and in those cases retrial would be barred. It was unclear
what prosecutorial or judicial misconduct would constitute such
overreaching,\88\ but in Oregon v. Kennedy,\89\ the Court adopted a
narrow ``intent'' test, so that ``[o]nly where the governmental conduct
in question is intended to `goad' the defendant into moving for a
mistrial may a defendant raise the bar of double jeopardy to a second
trial after having succeeded in aborting the first on his own motion.''
Therefore, ordinarily, a defendant who moves for or acquiesces in a
mistrial is bound by his decision and may be required to stand for
retrial.
\88\Compare United States v. Dinitz, 424 U.S. 600, 611 (1976),
with United States v. Tateo, 377 U.S. 463, 468 n.3 (1964).
\89\456 U.S. 667, 676 (1982). The Court thought a broader
standard requiring an evaluation of whether acts of the prosecutor or
the judge prejudiced the defendant would be unmanageable and would be
counterproductive because courts would be loath to grant motions for
mistrials knowing that reprosecution would be barred. Id. at 676-77. The
defendant had moved for mistrial after the prosecutor had asked a key
witness a prejudicial question. Four Justices concurred, noting that the
question did not constitute overreaching or harassment and objecting
both to the Court's reaching the broader issue and to its narrowing the
exception. Id. at 681.
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Reprosecution Following Acquittal.--That a defendant may not be
retried following an acquittal is ``the most fundamental rule in the
history of double jeopardy jurisprudence.''\90\ ``[T]he law attaches
particular significance to an acquittal. To permit a second trial after
an acquittal, however mistaken the acquittal may have been, would
present an unacceptably high risk that the Govern
[[Page 1289]]
ment, with its vastly superior resources, might wear down the defendant
so that `even though innocent he may be found guilty.'''\91\ While in
other areas of double jeopardy doctrine consideration is given to the
public-safety interest in having a criminal trial proceed to an error-
free conclusion, no such balancing of interests is permitted with
respect to acquittals, ``no matter how erroneous,'' no matter even if
they were ``egregiously erroneous.''\92\
\90\United States v. Martin Linen Supply Co., 430 U.S. 564, 571
(1977).
\91\United States v. Scott, 437 U.S. 82, 91 (1978) (quoting
Green v. United States, 355U.S. 184, 188 (1957)). For the conceptually
related problem of trial for a ``separate'' offense arising out of the
same ``transaction,'' see infra, pp.1299-1302.
\92\Burks v. United States, 437 U.S. 1, 16 (1978); Fong Foo v.
United States, 369 U.S. 141, 143 (1962). For evaluation of those
interests of the defendant that might support the absolute rule of
finality, and rejection of all such interests save the right of the jury
to acquit against the evidence and the trial judge's ability to temper
legislative rules with leniency, see Westen & Drubel, Toward a General
Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 122-37.
---------------------------------------------------------------------------
The acquittal being final, there is no governmental appeal
constitutionally possible from such a judgment. This was firmly
established in Kepner v. United States,\93\ which arose under a
Philippines appeals system in which the appellate court could make an
independent review of the record, set aside the trial judge's decision,
and enter a judgment of conviction.\94\ Previously, under the due
process clause, there was no barrier to state provision for
prosecutorial appeals from acquittals.\95\ But there are instances in
which the trial judge will dismiss the indictment or information without
intending to acquit or in circumstances in which retrial would not be
barred, and the prosecution, of course, has an interest in seeking on
appeal to have errors corrected. Until 1971, however, the law providing
for federal appeals was extremely difficult to apply and insulated from
review many purportedly erroneous legal rulings,\96\ but in that year
Congress enacted a new statute permitting appeals in all criminal cases
in which indictments are dis
[[Page 1290]]
missed, except in those cases in which the double jeopardy clause
prohibits further prosecution.\97\ In part because of the new law, the
Court has dealt in recent years with a large number of problems in this
area.
\93\195 U.S. 100 (1904). The case interpreted not the
constitutional provision but a statutory provision extending double
jeopardy protection to the Philippines. The Court has described the
case, however, as correctly stating constitutional principles. See,
e.g., United States v. Wilson, 420 U.S. 332, 346 n.15 (1975); United
States v. DiFrancesco, 449 U.S. 117, 113 n.13 (1980).
\94\In dissent, Justice Holmes, joined by three other Justices,
propounded a theory of ``continuing jeopardy,'' so that until the case
was finally concluded one way or another, through judgment of conviction
or acquittal, and final appeal, there was no second jeopardy no matter
how many times a defendant was tried. Id. at 134. The Court has numerous
times rejected any concept of ``continuing jeopardy.'' E.g., Green v.
United States, 355 U.S. 184, 192 (1957); United States v. Wilson, 420
U.S. 332, 351-53 (1975); Breed v. Jones, 421 U.S. 519, 533-35 (1975).
\95\Palko v. Connecticut, 302 U.S. 319 (1937). Palko is no
longer viable. Cf. Greene v. Massey, 437 U.S. 19 (1978).
\96\The Criminal Appeals Act of 1907, 34 Stat. 1246, was ``a
failure . . . , a most unruly child that has not improved with age.''
United States v. Sisson, 399 U.S. 267, 307 (1970). See also United
States v. Oppenheimer, 242 U.S. 85 (1916); Fong Foo v. United States,
369 U.S. 141 (1962).
\97\Title III of the Omnibus Crime Control Act, Pub. L. No. 91-
644, 84 Stat. 1890, 18 U.S.C. Sec. 3731. Congress intended to remove all
statutory barriers to governmental appeal and to allow appeals whenever
the Constitution would permit, so that interpretation of the statute
requires constitutional interpretation as well. United States v. Wilson,
420 U.S. 332, 337 (1974). See Sanabria v. United States, 437 U.S. 54, 69
n.23 (1978), and id. at 78 (Justice Stevens concurring).
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Acquittal by Jury.--Little or no controversy accompanies the
rule that once a jury has acquitted a defendant, government may not,
through appeal of the verdict or institution of a new prosecution, place
the defendant on trial again. Thus, the Court early held that, when the
results of a trial are set aside because the first indictment was
invalid or for some reason the trial's results were voidable, a judgment
of acquittal must nevertheless remain undisturbed.\98\
\98\In United States v. Ball, 163 U.S. 662 (1896), three
defendants were placed on trial, Ball was acquitted and the other two
were convicted, the two appealed and obtained a reversal on the ground
that the indictment had been defective, and all three were again tried
and all three were convicted. Ball's conviction was set aside as
violating the clause; the trial court's action was not void but only
voidable, and Ball had taken no steps to void it while the Government
could not take such action. Similarly, in Benton v. Maryland, 395 U.S.
784 (1969), the defendant was convicted of burglary but acquitted of
larceny; the conviction was set aside on his appeal because the jury had
been unconstitutionally chosen. He was again tried and convicted of both
burglary and larceny, but the larceny conviction was held to violate the
double jeopardy clause. On the doctrine of ``constructive acquittals''
by conviction of a lesser included offense, see infra, p.1294.
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Acquittal by the Trial Judge.--Similarly, when a trial judge
acquits a defendant, that action concludes the matter.\99\ There is no
possibility of retrial for the same offense.\100\ But it may be
difficult at times to determine whether the trial judge's action was in
fact an acquittal or was a dismissal or some other action which the
prosecution may be able to appeal. 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 of the offense
charged.''\101\ Thus, an appeal by the Government was held barred in a
case in which the deadlocked jury had been discharged, and the trial
judge had granted the defendant's motion for a judgment of acquittal
under the appropriate federal rule, explicitly based on the judgment
that the Government had not proved facts
[[Page 1291]]
constituting the offense.\102\ Even if, as happened in Sanabria v.
United States,\103\ the trial judge erroneously excludes evidence and
then acquits on the basis that the remaining evidence is insufficient to
convict, the judgment of acquittal produced thereby is final and
unreviewable.
\99\United States v. Martin Linen Supply Co., 430 U.S. 564, 570-
72 (1977); Sanabria v. United States 437 U.S. 54, 63-65 (1978); Finch v.
United States, 433 U.S. 676 (1977).
\100\In Fong Foo v. United States, 369 U.S. 141 (1962), the
Court acknowledged that the trial judge's action in acquitting was
``based upon an egregiously erroneous foundation,'' but it was
nonetheless final and could not be reviewed. Id. at 143.
\101\United States v. Martin Linen Supply Co., 430 U.S. 564, 571
(1977).
\102\Id. at 570-76. See also United States v. Scott, 437 U.S.
82, 87-92 (1978); Smalis v. Pennsylvania, 476 U.S. 140 (1986) (demurrer
sustained on basis of insufficiency of evidence is acquittal).
\103\437 U.S. 54 (1978). The double jeopardy applications of an
appellate court's reversal for insufficient evidence are discussed
infra, pp.1294-95.
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Some limited exceptions do exist with respect to the finality of
trial judge acquittal. First, because a primary purpose of the due
process clause is the prevention of successive trials and not of
prosecution appeals per se, it is apparently the case that if the trial
judge permits the case to go to the jury, which convicts, and the judge
thereafter enters a judgment of acquittal, even one founded upon his
belief that the evidence does not establish guilt, the prosecution may
appeal, because the effect of a reversal would be not a new trial but
reinstatement of the jury's verdict and judgment thereon.\104\ Second,
if the trial judge enters or grants a motion of acquittal, even one
based on the conclusion that the evidence is insufficient to convict,
the prosecution may appeal if jeopardy had not yet attached in
accordance with the federal standard.\105\
\104\In United States v. Wilson, 420 U.S. 332 (1975), following
a jury verdict to convict, the trial judge granted defendant's motion to
dismiss on the ground of prejudicial delay, not a judgment of acquittal;
the Court permitted a government appeal because reversal would have
resulted in reinstatement of the jury's verdict, not in a retrial. In
United States v. Jenkins, 420 U.S. 358, 365 (1975), the Court assumed,
on the basis of Wilson, that a trial judge's acquittal of a defendant
following a jury conviction could be appealed by the government because,
again, if the judge's decision were set aside there would be no further
proceedings at trial. In overruling Jenkins in United States v. Scott,
437 U.S. 82 (1978), the Court noted the assumption and itself assumed
that a judgment of acquittal bars appeal only when a second trial would
be necessitated by reversal. Id. at 91 n.7.
\105\Serfass v. United States, 420 U.S. 377 (1975) (after
request for jury trial but before attachment of jeopardy judge dismissed
indictment because of evidentiary insufficiency; appeal allowed); United
States v. Sanford, 429 U.S. 14 (1976) (judge granted mistrial after jury
deadlock, then four months later dismissed indictment for insufficient
evidence; appeal allowed, because granting mistrial had returned case to
pretrial status).
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Trial Court Rulings Terminating Trial Before Verdict.--If, after
jeopardy attaches, a trial judge grants a motion for mistrial,
ordinarily the defendant is subject to retrial;\106\ if, after jeopardy
attaches, but before a jury conviction occurs, the trial judge acquits,
perhaps on the basis that the prosecution has presented insufficient
evidence or that the defendant has proved a requisite defense such as
insanity or entrapment, the defendant is not sub
[[Page 1292]]
ject to retrial.\107\ However, it may be that the trial judge will grant
a motion to dismiss that is neither a mistrial nor an acquittal, but is
instead a termination of the trial in defendant's favor based on some
decision not relating to his factual guilt or innocence, such as
prejudicial preindictment delay.\108\ The prosecution may not simply
begin a new trial but must seek first to appeal and overturn the
dismissal, a course that was not open to federal prosecutors until
enactment of the 1971 law.\109\ That law has resulted in tentative and
uncertain rulings with respect to when such dismissals may be appealed
and further proceedings directed. In the first place, it is unclear in
many instances whether a judge's ruling is a mistrial, a dismissal, or
an acquittal.\110\ In the second place, because the Justices have such
differing views about the policies underlying the double jeopardy
clause, determinations of which dismissals preclude appeals and further
proceedings may result from shifting coalitions and from revised
perspectives. Thus, the Court first fixed the line between permissible
and impermissible appeals at the point at which further proceedings
would have had to take place in the trial court if the dismissal were
reversed. If the only thing that had to be done was to enter a judgment
on a guilty verdict after reversal, appeal was constitutional and
permitted under the statute;\111\ if further proceedings, such as
continuation of the trial or some further factfinding, was necessary,
appeal was not permitted.\112\ Now, but by a close division of the
Court, the determining factor is not whether further proceedings must be
had but whether the action of the trial judge, whatever its label,
correct or not, resolved some or all of the factual elements of the
offense charged in defendant's favor, whether, that is, the court made
some determination related to the defendant's factual guilt or inno
[[Page 1293]]
cence.\113\ Such dismissals relating to guilt or innocence are
functional equivalents of acquittals, whereas all other dismissals are
functional equivalents of mistrials.
\106\Supra, pp.1284-88.
\107\Supra, p.1290.
\108\United States v. Wilson, 420 U.S. 332 (1975) (preindictment
delay); United States v. Jenkins, 420 U.S. 358 (1975) (determination of
law based on facts adduced at trial; ambiguous whether judge's action
was acquittal or dismissal); United States v. Scott, 437 U.S. 82 (1978)
(preindictment delay).
\109\Supra, pp.1289-90. See United States v. Scott, 437 U.S. 82,
84-86 (1978); United States v. Sisson, 399 U.S. 267, 291-96 (1970).
\110\Cf. Lee v. United States, 432 U.S. 23 (1977).
\111\United States v. Wilson, 420 U.S. 332 (1975) (after jury
guilty verdict, trial judge dismissed indictment on grounds of
preindictment delay; appeal permissible because upon reversal all trial
judge had to do was enter judgment on the jury's verdict).
\112\United States v. Jenkins, 420 U.S. 358 (1975) (after
presentation of evidence in bench trial, judge dismissed indictment;
appeal impermissible because if dismissal was reversed there would have
to be further proceedings in the trial court devoted to resolving
factual issues going to elements of offense charged and resulting in
supplemental findings).
\113\United States v. Scott, 437 U.S. 82 (1978) (at close of
evidence, court dismissed indictment for preindictment delay; ruling did
not go to determination of guilt or innocence, but, like a mistrial,
permitted further proceedings that would go to factual resolution of
guilt or innocence). The Court thought that double jeopardy policies
were resolvable by balancing the defendant's interest in having the
trial concluded in one proceeding against the government's right to one
complete opportunity to convict those who have violated the law. The
defendant chose to move to terminate the proceedings and, having made a
voluntary choice, is bound to the consequences, including the obligation
to continue in further proceedings. Id. at 95-101. The four dissenters
would have followed Jenkins, and accused the Court of having adopted too
restrictive a definition of acquittal. Their view is that the rule
against retrials after acquittal does not, as the Court believed,
``safeguard determination of innocence; rather, it is that a retrial
following a final judgment for the accused necessarily threatens
intolerable interference with the constitutional policy against multiple
trials.'' Id. at 101, 104 (Justices Brennan, White, Marshall, and
Stevens). They would, therefore, treat dismissals as functional
equivalents of acquittals, whenever further proceedings would be
required after reversals.
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FIFTH AMENDMENT
RIGHTS OF PERSONS
Reprosecution Following Conviction
A basic purpose of the double jeopardy clause is to protect a
defendant ``against a second prosecution for the same offense after
conviction.''\114\ It is ``settled'' that ``no man can be twice lawfully
punished for the same offense.''\115\ Of course, the defendant's
interest in finality, which informs much of double jeopardy
jurisprudence, is quite attenuated following conviction, and he will
most likely appeal, whereas the prosecution will ordinarily be content
with its judgment.\116\ The situation involving reprosecution ordinarily
arises, therefore, only in the context of successful defense appeals and
controversies over punishment.
\114\North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
\115\Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873). For the
conceptually-related problem of trial for a ``separate'' offense arising
out of the same transaction, see infra, pp.1299-1301.
\116\A prosecutor dissatisfied with the punishment imposed upon
the first conviction might seek another trial in order to obtain a
greater sentence. Cf. Ciucci v. Illinois, 356 U.S. 571 (1958) (under due
process clause, double jeopardy clause not then applying to States).
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Reprosecution After Reversal on Defendant's Appeal.--Generally,
a defendant who is successful in having his conviction set aside on
appeal may be tried again for the same offense, the assumption being
made in the first case on the subject that, by appealing, a defendant
has ``waived'' his objection to further prosecution by challenging the
original conviction.\117\ Although it has char
[[Page 1294]]
acterized the ``waiver'' theory as ``totally unsound and
indefensible,''\118\ the Court has been hesitant in formulating a new
theory in maintaining the practice.\119\
\117\United States v. Ball, 163 U.S. 662 (1896). The English
rule precluded a new trial in these circumstances, and circuit Justice
Story adopted that view. United States v. Gilbert, 25 Fed. Cas. 1287
(No. 15,204) (C.C.D.Mass. 1834). The history is briefly surveyed in
Justice Frankfurter's dissent in Green v. United States, 355 U.S. 184,
200-05 (1957).
\118\Green v. United States, 355 U.S. 184, 197 (1957). The more
recent cases continue to reject a ``waiver'' theory. E.g., United States
v. Dinitz, 424 U.S. 600, 609 n.11 (1976); United States v. Scott, 437
U.S. 82, 99 (1978).
\119\Justice Holmes in dissent in Kepner v. United States, 195
U.S. 100, 134 (1904), rejected the ``waiver'' theory and propounded a
theory of ``continuing jeopardy,'' which also continues to be rejected.
See supra, p.1289 n.94. In some cases, a concept of ``election'' by the
defendant has been suggested, United States v. Scott, 437 U.S. 82, 93
(1978); Jeffers v. United States, 432 U.S. 137, 152-54 (1977), but it is
not clear how this formulation might differentiate itself from
``waiver.'' Chief Justice Burger has suggested that ``probably a more
satisfactory explanation'' for permissibility of retrial in this
situation ``lies in analysis of the respective interests involved,''
Breed v. Jones, 421 U.S. 519, 533-35 (1975), and a determination that on
balance the interests of both prosecution and defense are well served by
the rule. See United States v. Tateo, 377 U.S. 463, 466 (1964); Tibbs v.
Florida, 457 U.S. 31, 39-40 (1982).
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An exception to full application of the retrial rule exists,
however, when defendant on trial for an offense is convicted of a lesser
offense and succeeds in having that conviction set aside. Thus, in Green
v. United States,\120\ defendant had been placed on trial for first
degree murder but convicted of second degree murder; the Court held
that, following reversal of that conviction, he could not be tried again
for first degree murder, although he certainly could be for second
degree murder, on the theory that the first verdict was an implicit
acquittal of the first degree murder charge.\121\ Even though the Court
thought the jury's action in the first trial was clearly erroneous, the
double jeopardy clause required that the jury's implicit acquittal be
respected.\122\
\120\355 U.S. 184 (1957).
\121\The decision necessarily overruled Trono v. United States,
199 U.S. 521 (1905), although the Court purported to distinguish the
decision. Green v. United States, 355 U.S. 184, 194-97 (1957). See also
Brantley v. Georgia, 217 U.S. 284 (1910) (no due process violation where
defendant is convicted of higher offense on second trial).
\122\See also Price v. Georgia, 398 U.S. 323 (1970). The
defendant was tried for murder and was convicted of involuntary
manslaughter. He obtained a reversal, was again tried for murder, and
again convicted of involuntary manslaughter. Acknowledging that, after
reversal, Price could have been tried for involuntary manslaughter, the
Court nonetheless reversed the second conviction because he had been
subjected to the hazard of twice being tried for murder, in violation of
the double jeopardy clause, and the effect on the jury of the murder
charge being pressed could have prejudiced him to the extent of the
second conviction. But cf. Morris v. Mathews, 475 U.S. 237 (1986)
(inadequate showing of prejudice resulting from reducing jeopardy-barred
conviction for aggravated murder to non-jeopardy-barred conviction for
first degree murder). ``To prevail in a case like this, the defendant
must show that, but for the improper inclusion of the jeopardy-barred
charge, the result of the proceeding probably would have been
different.'' Id. at 247.
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Still another exception arises out of appellate reversals
grounded on evidentiary insufficiency. Thus, in Burks v. United
States,\123\
[[Page 1295]]
the appellate court set aside the defendant's conviction on the basis
that the prosecution had failed to rebut defendant's proof of insanity.
In directing that the defendant could not be retried, the Court observed
that if the trial court ``had so held in the first instance, as the
reviewing court said it should have done, a judgment of acquittal would
have been entered and, of course, petitioner could not be retried for
the same offense. . . . [I]t should make no difference that the
reviewing court, rather than the trial court, determined the evidence to
be insufficient.''\124\ The policy underlying the clause of not allowing
the prosecution to make repeated efforts to convict forecloses giving
the prosecution another opportunity to supply evidence which it failed
to muster in the first proceeding. On the other hand, if a reviewing
court reverses a jury conviction because of its disagreement on the
weight rather than the sufficiency of the evidence, retrial is
permitted; the appellate court's decision does not mean that acquittal
was the only proper course, hence the deference required for acquittals
is not merited.\125\ Also, the Burks rule does not bar reprosecution
following a reversal based on erroneous admission of evidence, even if
the remaining properly admitted evidence would be insufficient to
convict.\126\
\123\437 U.S. 1 (1978).
\124\Id. at 10-11. See also Greene v. Massey, 437 U.S. 19 (1978)
(remanding for determination whether appellate majority had reversed for
insufficient evidence or whether some of the majority had based decision
on trial error); Hudson v. Louisiana, 450 U.S. 40 (1981) (Burks applies
where appellate court finds some but insufficient evidence adduced, not
only where it finds no evidence). Burks was distinguished in Justices of
Boston Municipal Court v. Lydon, 466 U.S. 294 (1984), holding that a
defendant who had elected to undergo a bench trial with no appellate
review but with right of trial de novo before a jury (and with appellate
review available) could not bar trial de novo and reverse his bench
trial conviction by asserting that the conviction had been based on
insufficient evidence. The two-tiered system in effect gave the
defendant two chances at acquittal; under those circumstances jeopardy
was not terminated by completion of the first entirely optional stage.
\125\Tibbs v. Florida, 457 U.S. 31 (1982). The decision was 5-
to-4, the dissent arguing that weight and insufficiency determinations
should be given identical double jeopardy clause treatment. Id. at 47
(Justices White, Brennan, Marshall, and Blackmun).
\126\Lockhart v. Nelson, 488 U.S. 33 (1988) (state may
reprosecute under habitual offender statute even though evidence of a
prior conviction was improperly admitted; at retrial, state may attempt
to establish other prior convictions as to which no proof was offered at
prior trial).
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Sentence Increases.--The double jeopardy clause protects against
imposition of multiple punishment for the same offense.\127\ The
application of the principle leads, however, to a number of
complexities. In a simple case, it was held that where a court
inadvertently imposed both a fine and imprisonment for a crime for which
the law authorized one or the other but not both, it could
[[Page 1296]]
not, after the fine had been paid and the defendant had entered his
short term of confinement, recall the defendant and change its judgment
by sentencing him to imprisonment only.\128\ But the Court has held that
the imposition of a sentence does not from the moment of imposition have
the finality that a judgment of acquittal has. Thus, it has long been
recognized that in the same term of court and before the defendant has
begun serving the sentence the court may recall him and increase his
sentence.\129\ Moreover, a defendant who is retried after he is
successful in overturning his first conviction is not protected by the
double jeopardy clause against receiving a greater sentence upon his
second conviction.\130\ An exception exists with respect to capital
punishment, the Court having held that government may not again seek the
death penalty on retrial when on the first trial the jury had declined
to impose a death sentence.\131\
\127\Ex parte Lange, 85 U.S. (18 Wall.) 163, 173 (1874); North
Carolina v. Pearce, 395 U.S. 711, 717 (1969). For the application of the
principle in cases in which the same conduct has violated more than one
criminal statute, see infra, pp.1297-99.
\128\Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874).
\129\Bozza v. United States, 330 U.S. 160 (1947). See also
Pollard v. United States, 352 U.S. 354, 359-60 (1957) (imposition of
prison sentence two years after court imposed an invalid sentence of
probation approved). Dicta in some cases had cast doubt on the
constitutionality of the practice. United States v. Benz, 282 U.S. 304,
307 (1931). However, United States v. DiFrancesco, 449 U.S. 117, 133-36,
138-39 (1980), upholding a statutory provision allowing the United
States to appeal a sentence imposed on a ``dangerous special offender,''
removes any doubt on that score. The Court there reserved decision on
whether the government may appeal a sentence that the defendant has
already begun to serve.
\130\North Carolina v. Pearce, 395 U.S. 711, 719-21 (1969). See
also Chaffin v. Stynchcombe, 412 U.S. 17, 23-24 (1973). The principle of
implicit acquittal of an offense drawn from Green v. United States, 355
U.S. 184 (1957), does not similarly apply to create an implicit
acquittal of a higher sentence. Pearce does hold that a defendant must
be credited with the time served against his new sentence. Supra, 395
U.S. at 717-19.
\131\Bullington v. Missouri, 451 U.S. 430 (1981). Four Justices
dissented. Id. at 447 (Justices Powell, White, Rehnquist, and Chief
Justice Burger). The Court disapproved Stroud v. United States 251 U.S.
15 (1919), although formally distinguishing it. Bullington was followed
in Arizona v. Rumsey, 467 U.S. 203 (1984), also involving a separate
sentencing proceeding in which a life imprisonment sentence amounted to
an acquittal on imposition of the death penalty. Rumsey was decided by
7-2 vote, with only Justices White and Rehnquist dissenting.
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Applying and modifying these principles, the Court narrowly
approved the constitutionality of a statutory provision for sentencing
of ``dangerous special offenders,'' which authorized prosecution appeals
of sentences and permitted the appellate court to affirm, reduce, or
increase the sentence.\132\ The Court held that the provision did not
offend the double jeopardy clause. Sentences had never carried the
finality that attached to acquittal, and its precedents indicated to the
Court that imposition of a sentence less than the maximum was in no
sense an ``acquittal'' of the higher sentence. Appeal resulted in no
further trial or other proceedings to which
[[Page 1297]]
a defendant might be subjected, only the imposition of a new sentence.
An increase in a sentence would not constitute multiple punishment, the
Court continued, inasmuch as it would be within the allowable sentence
and the defendant could have no legitimate expectation of finality in
the sentence as first given because the statutory scheme alerted him to
the possibility of increase. Similarly upheld as within the allowable
range of punishment contemplated by the legislature was a remedy for
invalid multiple punishments under consecutive sentences: a shorter
felony conviction was vacated, and time served was credited to the life
sentence imposed for felony-murder. Even though the first sentence had
been commuted and hence fully satisfied at the time the trial court
revised the second sentence, the resulting punishment was ``no greater
than the legislature intended,'' hence there was no double jeopardy
violation.\133\
\132\United States v. DiFrancesco, 449 U.S. 117 (1980). Four
Justices dissented. Id. at 143, 152 (Justices Brennan, White, Marshall,
and Stevens).
\133\Jones v. Thomas, 491 U.S. 376, 381-82 (1989).
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``For the Same Offence''
Sometimes as difficult as determining when a defendant has been
placed in jeopardy is determining whether he was placed in jeopardy for
the same offense. As noted previously, the same conduct may violate the
laws of two different sovereigns, and a defendant may be proceeded
against by both because each may have different interests to serve.\134\
The same conduct may transgress two or more different statutes, because
laws reach lesser and greater parts of one item of conduct, or may
violate the same statute more than once, as when one robs several people
in a group at the same time.
\134\Supra, pp.1281-82.
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Legislative Discretion as to Multiple Sentences.--It frequently
happens that one activity of a criminal nature will violate one or more
laws or that one or more violations may be charged.\135\ Although the
question is not totally free of doubt, it appears that the double
jeopardy clause does not limit the legislative power to split a single
transaction into separate crimes so as to give the
[[Page 1298]]
prosecution a choice of charges that may be tried in one proceeding,
thereby making multiple punishments possible for essentially one
transaction.\136\ ``Where a legislature specifically authorizes
cumulative punishment under two statutes, regardless of whether those
two statutes proscribe the `same' conduct under Blockburger, a court's
task of statutory construction is at an end and . . . . the trial court
or jury may impose cumulative punishment under such statutes in a single
trial.''\137\ The clause does, however, create a rule of construction, a
presumption against the judiciary imposing multiple punishments for the
same transaction unless Congress has ``spoken in language that is clear
and definite''\138\ to pronounce its intent that multiple punishments
indeed be imposed. The commonly used test in determining whether
Congress would have wanted to punish as separate offenses conduct
occurring in the same transaction, absent otherwise clearly expressed
intent, is the ``same evidence'' rule. The rule, announced in
Blockburger v. United States,\139\ ``is that where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact
which the other does not.'' Thus, in Gore v. United States,\140\ the
Court held that defendant's one act of selling narcotics had violated
three distinct criminal statutes, each of which required proof of a fact
not required by the oth
[[Page 1299]]
ers; prosecuting him on all three counts in the same proceeding was
therefore permissible.\141\ So too, the same evidence rule does not
upset the ``established doctrine'' that, for double jeopardy purposes,
``a conspiracy to commit a crime is a separate offense from the crime
itself,''\142\ or the related principle that Congress may prescribe that
predicate offenses and ``continuing criminal enterprise'' are separate
offenses.\143\ On the other hand, in Whalen v. United States,\144\ the
Court determined that a defendant could not be separately punished for
rape and for killing the same victim in the perpetration of the rape,
because it is not the case that each statute requires proof of a fact
that the other does not, and no indication existed in the statutes and
the legislative history that Congress wanted the separate offenses
punished.\145\ In this as in other areas, a guilty plea ordinarily
precludes collateral attack.\146\
\135\There are essentially two kinds of situations here. There
are ``double-description'' cases in which criminal law contains more
than one prohibition for conduct arising out of a single transaction.
E.g., Gore v. United States, 357 U.S. 386, 392-93 (1958) (one sale of
narcotics resulted in three separate counts: (1) sale of drugs not in
pursuance of a written order, (2) sale of drugs not in the original
stamped package, and (3) sale of drugs with knowledge that they had been
unlawfully imported). And there are ``unit-of-prosecution'' cases in
which the same conduct may violate the same statutory prohibition more
than once. E.g., Bell v. United States, 349 U.S. 81 (1955) (defendant
who transported two women across state lines for an immoral purpose in
one trip in same car indicted on two counts of violating Mann Act). See
Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup.
Ct. Rev. 81, 111-22.
\136\Albernaz v. United States, 450 U.S. 333, 343-44 (1981)
(defendants convicted on separate counts of conspiracy to import
marijuana and conspiracy to distribute marijuana, both charges relating
to the same marijuana.) The concurrence objected that the clause does
preclude multiple punishments for separate statutory offenses unless
each requires proof of a fact that the others do not. Id. at 344.
Inasmuch as the case involved separate offenses which met this test,
Albernaz strictly speaking is not a square holding and previous dicta is
otherwise, but Albernaz is well-considered dicta in view of the
positions of at least four of its Justices who have objected to the
dicta in other cases suggesting a constitutional restraint by the
clause. Whalen v. United States, 445 U.S. 684, 695, 696, 699 (1980)
(Justices White, Blackmun, Rehnquist, and Chief Justice Burger).
\137\Missouri v. Hunter, 459 U.S. 359 (1983) (separate offenses
of ``first degree robbery,'' defined to include robbery under threat of
violence, and ``armed criminal action''). Only Justices Marshall and
Stevens dissented, arguing that the legislature should not be totally
free to prescribe multiple punishment for the same conduct, and that the
same rules should govern multiple prosecutions and multiple punishments.
\138\United States v. Universal C.I.T. Corp., 344 U.S. 218, 221-
22 (1952).
\139\284 U.S. 299, 304 (1932). This case itself was not a double
jeopardy case, but it derived the rule from Gavieres v. United States,
220 U.S. 338, 342 (1911), which was a double jeopardy case. See also
Carter v. McClaughry, 183 U.S. 365 (1902); Morgan v. Devine, 237 U.S.
632 (1915); Albrecht v. United States, 273 U.S. 1 (1927); Pinkerton v.
United States, 328 U.S. 640 (1946); American Tobacco Co. v. United
States, 328 U.S. 781 (1946); United States v. Michener, 331 U.S. 789
(1947); Pereira v. United States, 347 U.S. 1 (1954); Callanan v. United
States, 364 U.S. 587 (1961).
\140\357 U.S. 386 (1958).
\141\See also Albernaz v. United States, 450 U.S. 333 (1981);
Iannelli v. United States, 420 U.S. 770 (1975) (defendant convicted on
two counts, one of the substantive offense, one of conspiracy to commit
the substantive offense; defense raised variation of Blockburger test,
Wharton's Rule requiring that one may not be punished for conspiracy to
commit a crime when the nature of the crime necessitates participation
of two or more persons for its commission; Court recognized Wharton's
Rule as a double-jeopardy inspired presumption of legislative intent but
held that congressional intent in this case was ``clear and
unmistakable'' that both offenses be punished separately).
\142\United States v. Felix, 112 S. Ct. 1377, 1385 (1992).
\143\Garrett v. United States, 471 U.S. 773 (1985) (``continuing
criminal enterprise'' is a separate offense under the Comprehensive Drug
Abuse Prevention and Control Act of 1970).
\144\445 U.S. 684 (1980).
\145\The Court reasoned that a conviction for killing in the
course of rape could not be had without providing all of the elements of
the offense of rape. See also Jeffers v. United States, 432 U.S. 137
(1977) (no indication in legislative history Congress intended defendant
to be prosecuted both for conspiring to distribute drugs and for
distributing drugs in concert with five or more persons); Simpson v.
United States, 435 U.S. 6 (1978) (defendant improperly prosecuted both
for committing bank robbery with a firearm and for using a firearm to
commit a felony); Bell v. United States, 349 U.S. 81 (1955)
(simultaneous transportation of two women across state lines for immoral
purposes one violation of Mann Act rather than two).
\146\United States v. Broce, 488 U.S. 563 (1989) (defendant who
pled guilty to two separate conspiracy counts is barred from collateral
attack alleging that in fact there was only one conspiracy and that
double jeopardy applied).
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Successive Prosecutions for ``the Same Offense.''--Successive
prosecutions raise fundamental double jeopardy concerns extending beyond
those raised by enhanced and multiple punishments. It is more burdensome
for a defendant to face charges in separate proceedings, and if those
proceedings are strung out over a lengthy period the defendant is forced
to live in a continuing state of uncertainty. At the same time, multiple
prosecutions allow the state to hone its trial strategies through
successive attempts at
[[Page 1300]]
conviction.\147\ In Brown v. Ohio,\148\ the Court, apparently for the
first time, applied the same evidence test to bar successive
prosecutions in state court for different statutory offenses involving
the same conduct. The defendant had been convicted of ``joyriding,'' of
operating a motor vehicle without the owner's consent, and was then
prosecuted and convicted of stealing the same automobile. Because the
state courts had conceded that joyriding was a lesser included offense
of auto theft, the Court observed that each offense required the same
proof and for double jeopardy purposes met the Blockburger test. The
second conviction was overturned.\149\ Application of the same
principles resulted in a holding that a prior conviction of failing to
reduce speed to avoid an accident did not preclude a second trial for
involuntary manslaughter, inasmuch as failing to reduce speed was not a
necessary element of the statutory offense of manslaughter, unless the
prosecution in the second trial had to prove failing to reduce speed to
establish this particular offense.\150\ In Grady v. Corbin,\151\ the
Court modified the Brown approach, stating that the appropriate focus is
on same conduct rather than same evidence. A subsequent prosecution is
barred, the Court explained, if the government, to establish an
essential element of an offense, will prove conduct that constitutes an
offense for which the defendant has already been prosecuted.\152\ The
Brown Court had noted some limitations applicable to its holding,\153\
and more have emerged subsequently. Principles appro
[[Page 1301]]
priate in the ``classically simple'' lesser-included offense and related
situations are not readily transposible to ``multilayered conduct''
governed by the law of conspiracy and continuing criminal enterprise,
and it remains the law that ``a substantive crime and a conspiracy to
commit that crime are not the `same offense' for double jeopardy
purposes.''\154\
\147\See Grady v. Corbin, 495 U.S. 508, 518-19 (1990).
\148\432 U.S. 161 (1977). Cf. In re Nielson, 131 U.S. 176 (1889)
(prosecution of Mormon for adultery held impermissible following his
conviction for cohabiting with more than one woman, even though second
prosecution required proof of an additional fact--that he was married to
another woman).
\149\See also Harris v. Oklahoma, 433 U.S. 682 (1977) (defendant
who had been convicted of felony murder for participating in a store
robbery with another person who shot a store clerk could not be
prosecuted for robbing the store, since store robbery was a lesser-
included crime in the offense of felony murder).
\150\Illinois v. Vitale, 447 U.S. 410 (1980).
\151\495 U.S. 508 (1990).
\152\Id. at 521 (holding that the state could not prosecute a
traffic offender for negligent homicide because it would attempt to
prove conduct for which the defendant had already been prosecuted--
driving while intoxicated and failure to keep to the right of the
median).
\153\The Court suggested that if the legislature had provided
that joyriding is a separate offense for each day the vehicle is
operated without the owner's consent, so that the two indictments each
specifying a different date on which the offense occurred would have
required different proof, the result might have been different, but
this, of course, met the Blockburger problem. Brown v. Ohio, 432 U.S.
161, 169 n.8 (1977). The Court also suggested that an exception might be
permitted where the State is unable to proceed on the more serious
charge at the outset because the facts necessary to sustain that charge
had not occurred or had not been discovered. Id. at 169 n.7. See also
Jeffers v. United States, 432 U.S. 137, 150-54 (1977) (plurality
opinion) (exception where defendant elects separate trials); Ohio v.
Johnson, 467 U.S. 493 (1984) (trial court's acceptance of guilty plea to
lesser included offense and dismissal of remaining charges over
prosecution's objections does not bar subsequent prosecution on those
``remaining'' counts).
\154\United States v. Felix, 112 S. Ct. 1377, 1384 (1992).
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The ``Same Transaction'' Problem.--The same conduct may also
give rise to multiple offenses in a way that would satisfy the
Blockburger test if that conduct victimizes two or more individuals, and
therefore constitutes a separate offense as to each of them. In Hoag v.
New Jersey,\155\ before the double jeopardy clause was applied to the
States, the Court found no due process problem in successive trials
arising out of a tavern hold-up in which five customers were robbed.
Ashe v. Swenson,\156\ however, presented the Court with the Hoag fact
situation directly under the double jeopardy clause. The defendant had
been acquitted at trial of robbing one player in a poker game; the
defense offered no testimony and did not contest evidence that a robbery
had taken place and that each of the players had lost money. A second
trial was held on a charge that the defendant had robbed a second of the
seven poker players, and on the basis of stronger identification
testimony the defendant was convicted. Reversing the conviction, the
Court held that the doctrine of collateral estoppel\157\ was a
constitutional rule made applicable to the States through the double
jeopardy clause. Because the only basis upon which the jury could have
acquitted the defendant at his first trial was a finding that he was not
present at the robbery, hence was not one of the robbers, the State
could not relitigate that issue; with that issue settled, there could be
no conviction.\158\ Several Justices would have gone further and
required a compulsory joinder of all charges against a defendant
[[Page 1302]]
growing out of a single criminal act, occurrence, episode, or
transaction, except where a crime is not discovered until prosecution
arising from the same transaction has begun or where the same
jurisdiction does not have cognizance of all the crimes.\159\ But the
Court has ``steadfastly refused to adopt the `single transaction' view
of the Double Jeopardy Clause.''\160\
\155\356 U.S. 464 (1958). See also Ciucci v. Illinois, 356 U.S.
571 (1958).
\156\397 U.S. 436 (1970).
\157\```Collateral estoppel' is an awkward phrase . . . [which]
means simply that when an issue of ultimate fact has once been
determined by a final judgment, that issue cannot again be litigated
between the same parties in any future lawsuit.'' Id. at 443. First
developed in civil litigation, the doctrine was applied in a criminal
case in United States v. Oppenheimer, 242 U.S. 85 (1916). See also
Sealfon v. United States, 332 U.S. 575 (1948).
\158\Ashe v. Swenson, 397 U.S. 436, 466 (1970). See also Harris
v. Washington, 404 U.S. 55 (1971); Turner v. Arkansas, 407 U.S. 366
(1972). Cf. Dowling v. United States, 493 U.S. 342 (1990), in which the
Court concluded that the defendant's presence at an earlier crime for
which he had been acquitted had not necessarily been decided in his
acquittal. Dowling is distinguishable from Ashe, however, because in
Dowling the evidence relating to the first conviction was not a
necessary element of the second offense.
\159\Ashe v. Swenson, 397 U.S. 436, 448 (1970) (Justices
Brennan, Douglas, and Marshall concurring). Justices Brennan and
Marshall adhered to their position in Brown v. Ohio, 432 U.S. 161, 170
(1977) (concurring); and Thompson v. Oklahoma, 429 U.S. 1053 (1977)
(dissenting from denial of certiorari).
\160\Garrett v. United States, 471 U.S. 773, 790 (1985).
Earlier, the approach had been rejected by Chief Justice Burger in Ashe
v. Swenson, 397 U.S. 436, 468 (1970) (dissenting), by him and Justice
Blackmun in Harris v. Washington, 404 U.S. 55, 57 (1971) (dissenting),
and, perhaps, by Justice Rehnquist in Turner v. Arkansas, 407 U.S. 366,
368 (1972) (dissenting).
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FIFTH AMENDMENT
RIGHTS OF PERSONS
SELF-INCRIMINATION
Development and Scope
Source of this clause was the maxim ``nemo tenetur seipsum
accusare,'' that ``no man is bound to accuse himself.'' The maxim is but
one aspect of two different systems of law enforcement which competed in
England for acceptance; the accusatorial and the inquisitorial. In the
accusatorial system, which predated the reign of Henry II but was
expanded and extended by him, first the community and then the state by
grand and petit juries proceeded against alleged wrongdoers through the
examination of others, and in the early years through examination of the
defendant as well. The inquisitorial system, which developed in the
ecclesiastical courts, compelled the alleged wrongdoer to affirm his
culpability through the use of the oath ex officio. Under the oath, an
official had the power to make a person before him take an oath to tell
the truth to the full extent of his knowledge as to all matters about
which he would be questioned; before administration of the oath the
person was not advised of the nature of the charges against him, or
whether he was accused of crime, and was also not informed of the nature
of the questions to be asked.\161\
\161\Maguire, Attack of the Common Lawyers on the Oath Ex
Officio as Administered in the Ecclesiastical Courts in England, in
Essays in History and Political Theory in Honor of Charles Howard
McIlwain 199 (C. Wittke ed. 1936).
---------------------------------------------------------------------------
The use of this oath in Star Chamber proceedings, especially to
root out political heresies, combined with opposition to the
ecclesiastical oath ex officio, led over a long period of time to
general acceptance of the principle that a person could not be required
to accuse himself under oath in any proceeding before an official
tribunal seeking information looking to a criminal prosecution, or
before a magistrate investigating an accusation against him with or
[[Page 1303]]
without oath, or under oath in a court of equity or a court of common
law.\162\ The precedents in the colonies are few in number, but
following the Revolution six states had embodied the privilege against
self-incrimination in their constitutions,\163\ and the privilege was
one of those recommended by several state ratifying conventions for
inclusion in a federal bill of rights.\164\ Madison's version of the
clause read ``nor shall be compelled to be a witness against
himself,''\165\ but upon consideration by the House an amendment was
agreed to insert ``in any criminal case'' in the provision.\166\
\162\The traditional historical account is 8 J. Wigmore, A
Treatise on the Anglo-American System of Evidence Sec. 2250 (J.
McNaughton rev. 1961), but more recent historical studies have indicated
that Dean Wigmore was too grudging of the privilege. Leonard Levy,
Origins of the Fifth Amendment: The Right Against Self-Incrimination
(1968); Morgan, The Privilege Against Self-Incrimination, 34 Minn. L.
Rev. 1 (1949).
\163\3 F. Thorpe, The Federal and State Constitutions, reprinted
in H. Doc. No. 357, 59th Congress, 2d sess. 1891 (1909) (Massachusetts);
4 id. at 2455 (New Hampshire); 5 id. at 2787 (North Carolina), 3038
(Pennsylvania); 6 id. at 3741 (Vermont); 7 id. at 3813 (Virginia).
\164\Amendments were recommended by an ``Address'' of a minority
of the Pennsylvania convention after they had been voted down as a part
of the ratification action, 2 Bernard Schwartz, The Bill of Rights: A
Documentary History 628, 658, 664 (1971), and then the ratifying
conventions of Massachusetts, South Carolina, New Hampshire, Virginia,
and New York formally took this step.
\165\1 Annals of Congress 434 (June 8, 1789).
\166\Id. at 753 (August 17, 1789).
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The historical studies cited demonstrate that in England and the
colonies the privilege was narrower than the interpretation now
prevailing, a common situation reflecting the gradual expansion, or
occasional contracting, of constitutional guarantees based on the
judicial application of the policies underlying the guarantees in the
context of new factual patterns and practices. The difficulty is that
the Court has generally failed to articulate the policy objectives
underlying the privilege, usually citing a ``complex of values'' when it
has attempted to state the interests served by it.\167\ Commonly
mentioned in numerous cases was the assertion that the
[[Page 1304]]
privilege was designed to protect the innocent and to further the search
for truth.\168\ It appears now, however, that the Court has rejected
both of these as inapplicable and has settled upon the principle that
the clause serves two interrelated interests: the preservation of an
accusatorial system of criminal justice, which goes to the integrity of
the judicial system, and the preservation of personal privacy from
unwarranted governmental intrusion.\169\ In order to protect these
interests and to preserve these values, the privilege ``is not to be
interpreted literally.'' Rather, the ``sole concern [of the privilege]
is, as its name indicates, with the danger to a witness forced to give
testimony leading to the infliction of penalties affixed to the criminal
acts.''\170\
\167\``It reflects many of our fundamental values and most noble
aspirations; our unwillingness to subject those suspected of crime to
the cruel trilemma of self-accusation, perjury or contempt; our
preference for an accusatorial rather than an inquisitorial system of
criminal justice; our fear that self-incriminating statements will be
elicited by inhumane treatment and abuses; our sense of fair play which
dictates `a fair state-individual balance by requiring the government to
leave the individual alone until good cause is shown for disturbing him
and by requiring the government in its contest with the individual to
shoulder the entire load, . . .'; our respect for the inviolability of
the human personality and of the right of each individual `to a private
enclave where he may lead a private life,' . . . , our distrust of self-
deprecatory statement; and our realization that the privilege, while
sometimes `a shelter to the guilty,' is often `a protection to the
innocent.''' Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1954). A
dozen justifications have been suggested for the privilege. 8 J.
Wigmore, A Treatise on the Anglo-American System of Evidence 2251 (J.
McNaughton rev. 1961).
\168\E.g. Twining v. New Jersey, 211 U.S. 78, 91 (1908); Ullmann
v. United States, 350 U.S. 422, 426 (1956); Quinn v. United States, 349
U.S. 155, 162-63 (1955).
\169\``[T]he basic purposes that lie behind the privilege
against self-incrimination do not relate to protecting the innocent from
conviction, but rather to preserving the integrity of a judicial system
in which even the guilty are not to be convicted unless the prosecution
`shoulder the entire load.' . . .
``The basic purpose of a trial is the determination of truth,
and it is self-evident that to deny a lawyer's help through the
technical intricacies of a criminal trial or to deny a full opportunity
to appeal a conviction because the accused is poor is to impede that
purpose and to infect a criminal proceeding with the clear danger of
convicting the innocent. . . . By contrast, the Fifth Amendment's
privilege against self-incrimination is not an adjunct to the
ascertainment of truth. That privilege, like the guarantees of the
Fourth Amendment, stands as a protection of quite different
constitutional values--values reflecting the concern of our society for
the right of each individual to be let alone.'' Tehan v. United States
ex rel. Shott, 382 U.S. 406, 415, 416 (1966); Miranda v. Arizona, 384
U.S. 436, 460 (1966); Schmerber v. California, 384 U.S. 757, 760-765
(1966). See also California v. Byers, 402 U.S. 424, 448-58 (1971)
(Justice Harlan concurring). For a critical modern view of the
privilege, see Friendly, The Fifth Amendment Tomorrow: The Case for
Constitutional Change, 37 U. Cin. L. Rev. 671 (1968).
\170\Ullmann v. United States, 350 U.S. 422, 438-39 (1956).
---------------------------------------------------------------------------
``The privilege afforded not only extends to answers that would
in themselves support a conviction . . . but likewise embraces those
which would furnish a link in the chain of evidence needed to prosecute
. . . . [I]f the witness, upon interposing his claim, were required to
prove the hazard . . . he would be compelled to surrender the very
protection which the privilege is designed to guarantee. To sustain the
privilege, it need only be evident from the implications of the
question, in the setting in which it is asked, that a responsive answer
to the question or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result.''\171\ Thus, a
judge who would deny a claim of the privilege must be ```perfectly
clear, from a careful consideration of all the circumstances in the
case, that the witness is mistaken, and that the
[[Page 1305]]
answer[s] cannot possibly have such tendency' to incriminate.''\172\ The
witness must have reasonable cause to apprehend danger from an answer,
but he may not be the sole judge of the validity of his claim. While the
trial judge may not require a witness to disclose so much of the danger
as to render the privilege nugatory, he must determine whether there is
a reasonable apprehension of incrimination by considering the
circumstances of the case, his knowledge of matters surrounding the
inquiry, and the nature of the evidence which is demanded from the
witness.\173\ One must explicitly claim his privilege or he will be
deemed to have waived it, and waiver may be found where the witness has
answered some preliminary questions but desires to stop at a certain
point.\174\
\171\Hoffman v. United States, 341 U.S. 479, 486-87 (1951). See
also Emspak v. United States, 349 U.S. 190 (1955); Blau v. United
States, 340 U.S. 159 (1950); Blau v. United States, 340 U.S. 332 (1951).
\172\341 U.S. at 488 (quoting Temple v. Commonwealth, 75 Va.
892, 898 (1881)). For an application of these principles, see Malloy v.
Hogan, 378 U.S. 1, 11-14 (1964), and id. at 33 (Justices White and
Stewart dissenting). Where government is seeking to enforce an
essentially noncriminal statutory scheme through compulsory disclosure,
some Justices would apparently relax the Hoffman principles. Cf.
California v. Byers, 402 U.S. 424 (1971) (plurality opinion).
\173\Hoffman v. United States, 341 U.S. 479 (1951); Mason v.
United States, 244 U.S. 362 (1917).
\174\Rogers v. United States, 340 U.S. 367 (1951); United States
v. Monia, 317 U.S. 424 (1943). The ``waiver'' concept here as in other
recent cases has been pronounced ``analytically [un]sound,'' with the
Court preferring to reserve the term ``waiver'' ``for the process by
which one affirmatively renounces the protection of the privilege.''
Garner v. United States, 424 U.S. 648, 654, n.9 (1976). Thus, the Court
has settled upon the concept of ``compulsion'' as applied to ``cases
where disclosures are required in the face of claim of privilege.'' Id.
``[I]n the ordinary case, if a witness under compulsion to testify makes
disclosures instead of claiming the privilege, the Government has not
`compelled' him to incriminate himself.'' Id. at 654. Similarly, the
Court has enunciated the concept of ``voluntariness'' to be applied in
situations where it is claimed that a particular factor denied the
individual a ``free choice to admit, to deny, or to refuse to answer.''
Id. at 654 n.9, 656-65.
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The privilege against self-incrimination is a personal one and
cannot be utilized by or on behalf of any organization, such as a
corporation. Thus, a corporation cannot object on self-incrimination
grounds to a subpoena of its records and books or to the compelled
testimony of those corporate agents who have been given personal
immunity from criminal prosecution.\175\ Neither may a corporate
official with custody of corporate documents which incriminate him
personally resist their compelled production on the assertion of his
personal privilege.\176\
\175\United States v. White, 322 U.S. 694, 701 (1944); Baltimore
& O.R.R. v. ICC, 221 U.S. 612, 622 (1911); Hale v. Henkel, 201 U.S. 43,
69-70, 74-75 (1906).
\176\United States v. White, supra, 699-700; Wilson v. United
States, 221 U.S. 361, 384-385 (1911). But the government may make no
evidentiary use of the act of production in proceeding individually
against the corporate custodian. Braswell v. United States, 487 U.S. 99
(1988). Cf. George Campbell Painting Corp. v. Reid, 392 U.S. 286 (1968);
United States v. Rylander, 460 U.S. 752 (1983) (witness who had failed
to appeal production order and thus had burden in contempt proceeding to
show inability to then produce records could not rely on privilege to
shift this evidentiary burden).
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[[Page 1306]]
A witness has traditionally been able to claim the privilege in
any proceeding whatsoever in which testimony is legally required when
his answer might be used against him in that proceeding or in a future
criminal proceeding or when it might be exploited to uncover other
evidence against him.\177\ Conversely, there is no valid claim on the
ground that the information sought can be used in proceedings which are
not criminal in nature.\178\ The Court in recent years has also applied
the privilege to situations, such as police interrogation of suspects,
in which there is no legal compulsion to speak.\179\ What the privilege
protects against is compulsion of ``testimonial'' disclosures; requiring
a person in custody to stand or walk in a police lineup, to speak
prescribed words, to model particular clothing, or to give samples of
handwriting, fingerprints, or blood does not compel him to incriminate
himself within the mean
[[Page 1307]]
ing of the clause,\180\ although compelling him to produce private
papers may.\181\
\177\Thus, not only may a defendant or a witness in a criminal
trial, including a juvenile proceeding, In re Gault, 387 U.S. 1, 42-57
(1967), claim the privilege but so may a party or a witness in a civil
court proceeding, McCarthy v. Arndstein, 266 U.S. 34 (1924), a potential
defendant or any other witness before a grand jury, Reina v. United
States, 364 U.S. 507 (1960); Counselman v. Hitchcock, 142 U.S. 547, 563
(1892), or a witness before a legislative inquiry, Watkins v. United
States, 354 U.S. 178, 195-96 (1957); Quinn v. United States, 349 U.S.
155 (1955); Emspak v. United States, 349 U.S. 190 (1955), or before an
administrative body. In re Groban, 352 U.S. 330, 333, 336-37, 345-46
(1957); ICC v. Brimson, 154 U.S. 447, 478-80 (1894).
\178\Allen v. Illinois, 478 U.S. 364 (1986) (declaration that
person is ``sexually dangerous'' under Illinois law is not a criminal
proceeding); Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984)
(revocation of probation is not a criminal proceeding, hence ``there can
be no valid claim of the privilege on the ground that the information
sought can be used in revocation proceedings''). In Murphy, the Court
went on to explain that ``a State may validly insist on answers to even
incriminating questions and hence sensibly administer its probation
system, as long as it recognizes that the required answers may not be
used in a criminal proceeding and thus eliminates the threat of
incrimination. Under such circumstances, a probationer's `right to
immunity as a result of his compelled testimony would not be at stake'
. . . and nothing in the Federal Constitution would prevent a State from
revoking probation for a refusal to answer . . . .'' Id.
\179\Miranda v. Arizona, 384 U.S. 436 (1966).
\180\Schmerber v. California, 384 U.S. 757, 764 (1966); United
States v. Wade, 388 U.S. 218, 221-23 (1967); Holt v. United States, 218
U.S. 245, 252 (1910). In California v. Byers, 402 U.S. 424 (1971), four
Justices believed that requiring any person involved in a traffic
accident to stop and give his name and address did not involve
testimonial compulsion and therefore the privilege was inapplicable, id.
at 431-34 (Chief Justice Burger and Justices Stewart, White, and
Blackmun), but Justice Harlan, id. at 434 (concurring), and Justices
Black, Douglas, Brennan, and Marshall, id. at 459, 464 (dissenting),
disagreed. In South Dakota v. Neville, 459 U.S. 553 (1983), the Court
indicated as well that a State may compel a motorist suspected of drunk
driving to submit to a blood alcohol test, and may also give the suspect
a choice about whether to submit, but use his refusal to submit to the
test as evidence against him. The Court rested its evidentiary ruling on
absence of coercion, preferring not to apply the sometimes difficult
distinction between testimonial and physical evidence. In another case,
involving roadside videotaping of a drunk driving suspect, the Court
found that the slurred nature of the suspect's speech, as well as his
answers to routine booking questions as to name, address, weight,
height, eye color, date of birth, and current age, were not testimonial
in nature. Pennsylvania v. Muniz, 496 U.S. 582 (1990). On the other
hand, the suspect's answer to a request to identify the date of his
sixth birthday was considered testimonial. Id.
\181\Fisher v. United States, 425 U.S. 391 (1976), however,
holds that compelling a taxpayer by subpoena to produce documents
produced by his accountants from his own papers does not involve
testimonial self-incrimination and is not barred by the privilege.
``[T]he Fifth Amendment does not independently proscribe the compelled
production of every sort of incriminating evidence but applies only when
the accused is compelled to make a testimonial communication that is
incriminating.'' Id. at 408 (emphasis by Court). Even if the documents
contained the writing of the person being compelled to produce them,
that would be insufficient to trigger the privilege, unless the
government had compelled him to write in the first place. Id. at 410
n.11. Only if by complying with the subpoena the person would be making
a communication that was both ``testimonial'' and ``incriminating,''
such as by conceding the existence of the papers or indicating that
these are the papers sought, would he have a valid claim of privilege,
and even there one would have to evaluate the facts and circumstances of
the particular case to reach a determination. Id. at 410. Even further
removed from the protection of the privilege is seizure pursuant to a
search warrant of business records in the handwriting of the defendant.
Andresen v. Maryland, 427 U.S. 463 (1976). A court order compelling a
target of a grand jury investigation to sign a consent directive
authorizing foreign banks to disclose records of any and all accounts
over which he had a right of withdrawal is not testimonial in nature,
since the factual assertions are required of the banks and not of the
target. Doe v. United States, 487 U.S. 201 (1988). But in United States
v. Doe, 465 U.S. 605 (1984), the Court distinguished Fisher, upholding
lower courts' findings that the act of producing tax records implicates
the privilege because it would compel admission that the records exist,
that they were in the taxpayer's possession, and that they are
authentic. Similarly, a juvenile court's order to produce a child
implicates the privilege, because the act of compliance ``would amount
to testimony regarding [the subject's] control over and possession of
[the child].'' Baltimore Dep't of Social Services v. Bouknight, 493 U.S.
549, 555 (1990).
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The protection is against ``compulsory'' incrimination, and
traditionally the Court has treated within the clause only those
compulsions which arise from legally enforceable obligations,
culminating in imprisonment for refusal to testify or to produce
documents.\182\ But the compulsion need not be imprisonment; it can as
[[Page 1308]]
well be termination of public employment\183\ or disbarment of a
lawyer\184\ as a legal consequence of a refusal to make incrimin |