Amend the 5th Amendment? (Double Jeopardy)

Great Debates
21

Although there is no statute of limitations, there remains the right to speedy trial, and intentionally delaying charging (and thus trial) in an effort to compromise the defendant’s (relative) ability to defend himself is, well, disfavored. Patiently (albeit diligently) building a prosecution case is another matter, of course, but lengthy delays between crime-commission and crime-prosecution invariably provoke defense challenges.

As for the “vast resources of the state,” you all need to know just how often that is a complete myth. Many prosecutorial agencies are run on shoe-string budgets, and not uncommonly, public defender offices have considerably more investigative and forsensic resources at their disposal. In some parts, publicly-funded defense counsel are actually paid a good bit more than prosecutors. In California, for example, the attorneys who work for the state agency that represents death row inmates in their post-conviction proceedings make as much as 20% more in salary than their counterparts at the state Attorney General’s office.

None of this, of course, has much to do with the double jeopardy clause–which is a decidely good provision IMHO, because it furthers one of the most important attributes of any rational legal system: finality.

22

[QUOTE]
*Originally posted by RexDart *
Nitpick…jeopardy attaches at a bench trial when the first witness is sworn in. If you had a document that didn’t need authentication by a witness, as far as I know introducing it wouldn’t attach jeopardy.

[QUOTE]

Perhaps I should have said, “At least in Virginia, …” Here in the Commonwealth, jeopardy attaches at a bench trial when the judges begins hearing evidence. Peterson v. Commonwealth, 5 Va. App. 389, 395, 363 S.E.2d 440, 444 (1987); Greenwalt v. Commonwealth, 224 Va. 498, 500-01, 297 S.E.2d 709, 710 (1982).

I doubt that the rule you suggest applies anywhere, though. Applying that standard, it is conceivable that an accused could rest after the prosecution’s case, and be found guilty, all with jeopardy ever attaching.

Dixon did not, as you suggest, restore Blockburger. But it didn’t need to, because Grady did not overrule it. Grady stood for the proposition that addition to passing the Blockburger test, a subsequent prosecution must satisfy a “same conduct” test to avoid the double jeopardy bar. The new test created a rule that forbids a second prosecution:

Along came Dixon, which explicitly overruled Grady, (with, I might add, some harsh words for Justice Souter).

Blockburger is quoted with approval in state and federal opinions everywhere. It is the law of the land. Grady, even when it was good law, never overruled it, but merely added to it.

  • Rick
23

If a mod could fix the first QUOTE tag that appears above so that it’s an ENDQUOTE tag, I would be very appreciative.

  • Rick
24

It provokes defense challenges, but not under the speedy trial right. The evils the right to a speedy trial is meant to abate is (a) causing an untried individual to languish in jail - that is, punishment without conviction, and (b) if the person can make bail, the injury caused to the individual by a criminal accusation looming over his/her head for a prolonged period without resolution.
In either case, an indictment is needed before the speedy trial right comes into play.

Sua

25

I was, of course, referring to the “speedy trial” component of the due process clause. (And an indictment, strictly speaking, is NOT required to trigger the 7th amend guarantee; charging by information, for example, is sufficient. But does anyone out there (other than Sua and me) really care about such minutiae?)

26

We already have thrown away the 5th Amendment. Look at all the cases in which someone was found innocent in a state court, then was arrested, tried and convicted in federal court of the same crime, just a different title to the law.

And as much as I think the innocent verdict in O.J.'s trial was a total miscarriage of justice, he got raped in civil court by being convicted of a crime that he had already been found innocent of. No one should be allowed to sue in civil court if you don’t like the verdict in criminal court.

27

why not? different issues entirely and different levels of proof necessary.

It’s not at all conflicting to say that (for example) one jury found OJ not guilty (vs. innocent) of the crime of murders (Ron Goldman & Nicole Brown Simpson), since they didn’t believe that there was proof beyond a reasonable doubt, while another jury found that by the preponderance of the evidence there was sufficient cause to believe that he was (civilly) responsible.

28

While that definitely is an abuse, it is hyperbole to say that the instances where someone is retried on federal charges means that we have thrown away the 5th Amendment. Those instances are infinitesmal compared to the number of cases. And there is an automatic safety net - the feds don’t have any jurisdiction in the overwhelming number of state criminal cases.

If that is a problem, that problem has been around since the dawn of the Republic - this is nothing new. And in any event, civil actions determine something completely different from criminal ones; they simply determine financial responsibility, not criminal guilt.

Sua

29

Or what wring said. :smiley:

Sua

30

:wink:
(and I gave the name of the other victim, too, just for you)

31

OJ, of course, was not “convicted” of anything in the later civil suit; rather, he was found civilly liable. One can debate the policy implications of allowing successive criminal prosecutions by different sovereigns (feds rather than state), although the precedent for permitting it is rather well established. But barring civil proceedings following an unsuccessful prosecution would be unheard-of and, IMHO, truly absurd.

First of all, such a rule would not take stock of the differing standards of proof that operate in each proceeding. The standard for criminal conviction being higher, there simply is no logical inconsistency between being aquitted of a crime and being found civilly liable for precisely the same conduct.

But even if there were an inconsistency, one has to consider the position occupied by the victims (or their survivors), whose only realistic prospect of restitution is by civil suit against the criminal/tort feasor. Criminal cases are lost by the prosecution for all sorts of reasons that have nothing to do with whether the victim suffered an injury for which the defendant is responsible: sometimes jurors act stupidly or dishonestly in refusing to follow the law; judges occasionally commit error in their rulings that proves prejudicial to the state; and sometimes prosecutors simply commit tactical blunders. In such situations, no one – not the state, not the victims, and not the court system itself – has any no recourse, no remedy. (This is true even if it can be proved that the jurors were bribed to return a not guilty verdict) (By contrast, when a criminal defendant suffers prejudice as a result of these sorts of events, he is granted a new trial.) Civil litigants–who have no hand in the the decision how (or even whether) to prosecute–should not be forced to assume those risks. Hence the rule: acquittals confer no immunity from civil liablility.

32

or what wring and sua BOTH said.

(Geez, rmind me never again to take a call while posting)

33

Errr… not to nitpick the nitpicker’s nitpick, or anything… but Rmat: just wondering if you had any rebuttal to the issue above of when jeopardy attaches at a bench trial in any other jurisdiction. And if you’d like to withdraw your characterization of Blockburger no longer being good law.

  • Rick
34

Jeopardy attaches at a bench trial when the first witness is sworn (as someone else mentioned). I never disputed this correct statement of law, and thus I certainly have no “rebuttal” to it.

I also never characterized Blockburger as good law, bad law, or no law; indeed, I never even mentioned it.

You looking for a fight or something, Bricker?

35

Whoops!

It was RexDart that posted the claim that Blockburger was no longer good law. I confused you and he; I apologize.

Sorry about that. Nor am I looking for a fight – just looking for the record to be straight.

The hypo that RexDart offered was a bench trial in which the prosecution begins by introducing a document that didn’t require authentication. Has jeopardy attached?

In Virginia, it has.

  • Rick
36

Uh, you didn’t get the point. It’s not “a different title to the law” – it’s a violation of a quite different law. And it’s quite possible for something to not be a violation of one law while being one of another. (A really good example, if stretching a point, would be a drunk man sitting behind the wheel of a car parked in a “No Parking” zone – he is, self-evidently, not guilty of driving while intoxicated, being parked and may well have driven the car there sober and got drunk in it – but he’s certainly guilty of a parking violation.) Someone may be guilty of a federal crime who is innocent of a related state crime, or the reverse, and the courts have always held that acquittal in one jurisdiction does not necessarily bar prosecution in the other.

As for your second paragraph, you’re confusing crimes with torts. The former are violations of penal law prosecuted by the state; the latter are civil wrongs in which one person sues another. They differ from other civil suits in subtle ways, essentially in proof of commission of a specific defined tort being required to collect. Whether a person is guilty under the law of the crime(s) of murder (or manslaughter, criminally negligent homicide, etc.) has no bearing on whether or not he may have committed the tort of wrongful death and be liable to suit by the heirs of the deceased.

37

Oh, and thanks to a kindly Moderator correcting the typo, I probably need to point out that my 1:53 PM post on 11/22 made reference to “Amened the Fifth Amendment?” as the thread title, prior to correction of the typo.

38

Er, Polycarp, that’s not really correct. First, as an aside, in most every state (and probably all of them), if you are sitting in your car drunk you are guilty of DUI, regardless of whether you have the engine on.

But more to the point, the traditional requirement is that you must be charged with all crimes that arise from the same incident at the same time. Without this rule, prosecutors could hold back a charge in case the jury in the first trial didn’t buy the prosecutor’s argument and voted not guilty. This raises the spectre of repeated prosecutions until the prosecutor gets the verdict he/she wants. It’s the flip side of the coin of double jeopardy.

The federal/state double trial atrocity is justified not on a basis of different crimes, but instead of different jurisdictions. A federal prosecutor does not have the authority to file a murder charge based on state law, and a state prosecutor does not have the authority to file a violation of civil rights charge based on federal law - even where the charges arise from the exact same event and the same evidence will prove or disprove both charges.
This inability to file all available charges is the rationale for allowing a second federal trial after a state acquittal. While this inability exists, so what? That’s not the defendant’s fault, and he/she should not have his/her right against double jeopardy infringed over a procedural matter outside his/her control.

Sua

39

No prob, Bricker. Apology accepted. (Actually, I’m a little disappoitned you weren’t looking for a fight; I felt pretty confident that I’d win this one.)

The rule, as I’ve always heard it expressed (anywhere), is “first witness,” and thus the answer would be no. But your hypothetical assumes that the first piece of evidence adduced is something other than testimony–an exceedingly unlikely scenario that the familiar expression of the rule may well have failed to take stock of. (“Self-authenticating” documents, after all, are not terribly common, which explains why trial judges say, “You may call your first witness,” rather than “You may offer your first document.”)

I’m no DUI expert, but I can assure you that in California, if the evidence shows merely that you are drunk behind the wheel of a car (engine running or not) you cannot be convincted of DUI; indeed, you typically wouldn’t even be charged with it (Drunk in public is another story.). There might be a little leeway in that rule in the event of a collision, but I’m doubtful even about that.

40

That’s not quite correct either. Although federal prosecutors cannot charge defendants with purely state-law violations, there is a fair amount of overlap. Most drug crimes and bank robbery come first to mind. And there is nothing, for example, that would prevent a state from making it a crime to conspire to violate another’s federal constitutional rights. The “inability to charge,” as such, is not the rationale for the “atrocity” Sua describes, for the rule applies even in those situations in which criminal charges could have been brought by either the state or the feds; rather, the rationale derives from the simple fact that under our system of Federalism the states and the national government are different sovereigns–and the action of either is generally not binding on the other. Nothing “atrocious” about that; it is the essence of our Nation’s political formation and continued existence.