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An in-depth analysis of the historical background and key court cases related to double jeopardy protection in US criminal law. It covers the recognition of double jeopardy protection in common law, the incorporation of the Fifth Amendment's double jeopardy protection into the Fourteenth Amendment, and various court decisions that have shaped the application of double jeopardy clause. The document also discusses the debate between notice rationale and separation of powers explanation for double jeopardy protection.
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I. INTRODUCTON
The fifth amendment of the United States Constitution states that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."' In recent years, the United States Supreme Court has struggled when attempting to apply the general words of the double jeopardy clause to specific cases.^2 During the^ late 1970s and early 1980s, a period in which the Court began to decide double jeopardy cases more frequently than it had before, 3 the Court readily admitted that its decisions were not the product of a coherent doctrine. 4 Chief Justice Rehnquist once stated that the double jeopardy clause is "one of the least understood ... provisions of the Bill of Rights. [The] Court has done little to alleviate^ the^ confusion^ ....^^5 Nevertheless, since the early 1980s, the Court has seemed less tentative when addressing double jeopardy^ questions,^6 which^ suggests^ that^ the^ Court believes^ that^ its "closer look" 7 at the clause in the 1970s did "alleviate the confusion." Yet despite this apparent clarity in the Court's more recent decisions, the Court continues to struggle when attempting to apply the clause. This Comment pursues the suggestion of one commentator that a "functional" analysis will enable the Court to apply the double jeopardy clause consistently. 8 A functional analysis "identifies the substantive values within ... the Constitution, and applies these values in the context of our contemporary culture." 9 The Comment will
first trace the double jeopardy clause's historical background, since the Court primarily relies on history when attempting to apply the clause. It will then enumerate the clause's possible functions. Lastly, it will examine three specific double jeopardy questions and discuss recent Supreme Court decisions relating to those three questions. This discussion will show how the Court's current approach creates haphazard results and will suggest how the Court might have decided recent cases if the Court had been more conversant with the clause's functions.
II. A HISTORICAL LOOK AT THE DOUBLE JEOPARDY CLAUSE The Court's recent double jeopardy decisions have relied primarily on the numerous cases that the Court decided during the late 1970s and early 1980s, which in turn relied primarily on the Court's interpretation of the clause's history.' 0 Therefore, an understanding of the Court's more recent decisions requires a brief look at the clause's history and an explanation of why the Court should not use a historical approach in double jeopardy cases. The origins of the double jeopardy concept are obscure because the concept is nearly universal. Some kind of double jeopardy maxim has existed "in almost all systems of jurisprudence throughout history."'I The English common law was no exception, since it recognized the idea that "a man's life shall not be put twice in jeopardy for the^ same offense."^ 1 2 The word "jeopardy" first appeared in an English law report in 1421.13 Fifteenth century cases using the term said that a plea of not guilty put a defendant's life "in jeopardy."' 4 However, the term "jeopardy" did not have the legal significance then that it has today. 15 At that time, the law usually associated "jeopardy" with actions for malicious appeal or for conspiracy to procure an indictment for felony. A plaintiff bringing either type of action against his alleged persecutor had to show that the defendant's actions had caused the plaintiff to put his life "in jeopardy" (by pleading not guilty). 1 6^ The maxim that stated a prohibition against twice putting a person in jeopardy did not emerge until the mid-sixteenth^ century.^17 Despite the absence of^ the^ term^ "double^ jeopardy,"^ the common^ law^ had recognized the general concept by the thirteenth century, although^ England's^ archaic system of dual prosecutions lessened^ the^ usefulness^ of^ double^ jeopardy^ protection.'^8
10. See, e.g., United States v. DiFrancesco, 449 U.S. 117, 133 (1980); Brown v. Ohio, 432 U.S. 161,165 (1977); United States v. Wilson, 420 U.S. 332, 339-42 (1975). 11. Note, Heath v. Alabama-Contravention of Double Jeopardy and FullFaith and CreditPrinciples, 17 Loy. U. CHI. L.J. 721, 723 (1986). See also Benton^ v.^ Maryland,^^395 U.S.^ 784,^795 (1969).
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The legislative history of the double jeopardy clause^ is^ slim.^ Congress apparently did intend the clause to conform to "universal practice" in Great Britain and the United States. 3 1^ Congress also changed the clause's original wording. Representative Egbert^ Benson^ of^ New^ York^ objected^ to^ the^ words^ "or^ trial"^ on^ the grounds that^ they^ might^ be^ construed^ to^ bar^ a^ convicted^ defendant's^ appeal, something not required^ by^ the^ principle^ "that^ no^ man's^ life should more than once^ be put in jeopardy for the same offence.'"32 Benson moved that the words "or trial" be stricken and Congress adopted the motion, eventually changing the words "pun- ishment or trial"^ to^ the more Blackstone-like^ "jeopardy^ of^ life^ and^ limb."^ ' Since the archaic wording of the double jeopardy clause "is not a clear declaration of policy," '34^ a court attempting to apply the clause must turn to non-textual sources. 35 The Supreme^ Court^ has^ chosen^ to^ turn^ to^ history.3 6^ However, the Court's historical approach does not suffice to determine double jeopardy clause questions for three reasons. First, historical ambiguity lessens the usefulness of a strictly historical approach. 37 In some cases in which the Court^ used^ historical arguments, it could easily have used other historical arguments to support different resolutions of the same case. Secondly, even if one could recreate the intended role of double jeopardy protection at the time of the adoption of the Bill of Rights through a narrow "interpretivist" approach, 38 that approach could not adequately define the clause's function in present-day society because such an approach might fail to take account of "changes that have occurred in our criminal justice system over the past two hundred years." ' 3 9^ Thirdly, a historical approach is inconsistent with the approach the Court takes to other fundamental constitutional rights. The Court, when it recognized that^ the^ double^ jeopardy^ clause^ applies^ to^ the^ states^ through^ the^ due process clause^ of^ the^ fourteenth^ amendment,^ stated that^ "the^ double^ jeopardy prohibition of the [fjifth [a]mendment represents a fundamental ideal in our constitutional heritage .... ",40 The Court^ has^ generally rejected^ a^ strict historical approach to issues involving other fundamental constitutional rights^ and^ has^ instead taken a functional approach. 4t^ The Court should do^ the same when^ dealing^ with^ the fundamental protection against double jeopardy.
Thus, a historical approach is inadequate for three reasons: (1) historical ambiguity; (2) changes in the criminal justice system since the time of the adoption of the Bill of Rights; and (3) consistency with the Court's method of applying other constitutional provisions.
JT. A FUNCTIONAL LOOK AT THE DOUBLE JEOPARDY CLAUSE Green v. United States^42 is the starting point for an examination of the double jeopardy clause's function, because in Green the Court discussed the clause's "underlying (^) idea, (^) "' 43 which (^) is that:
[T]he 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.- According to this statement, the clause protects two values, 45 both of which are threatened by "repeated attempts to convict an individual for an alleged offense" and both of which arise from the fact that the^ state^ has^ more "resources^ and^ power"^ than an individual defendant. The first value is the defendant's "finality" interest. 46 Repeated attempts to convict an individual compel a defendant to live "in a continuing state of anxiety and insecurity. "47 Once accused of a crime, a defendant "must suffer the anxiety of not knowing whether he will be found criminally liable and whether he will have to suffer a prison term.' 48 Without double jeopardy protection, a defendant's ability to conduct his life would be hampered by the fear of renewed exposure to the "embarrassment, (^) expense and ordeal" of trial. (^49) The clause thus protects (^) "the accused's interest in repose" 50 or his interest in "being able, once and for all, to conclude his^ confrontation with^ society."^ '5 1 The second value is a need to prevent the state from "enhancing the possibility
notice that his conduct is criminal. 65 Westen's third interest is identical to^ the Supreme Court's finality interest.^66 Judge Monroe McKay suggested another possible function^ of^ the^ double jeopardy clause. McKay stated that under a^ common^ law^ system^ "that^ prescribed [sic] few and distinct crimes ...^ [and]^ that applied^ jury^ rules virtually^ eliminating mistrials, the threat of multiple prosecution and punishment arose most visibly in the repetition of a^ prosecution following^ acquittal^ or^ conviction.'^67 However,^ given^ the present American system of overlapping crimes, less formal indictments, and mistrials, 68 McKay felt that the modern double jeopardy clause should serve as^ a^ limit on excessive prosecutorial discretion in charging persons with crimes,^ because prosecutorial discretion can^ become^ a^ means^ of^ harassment^ or^ oppression.^
69
In sum, the Supreme Court and others have identified five possible^ functions^ of the double jeopardy clause: (1) protecting the defendant's finality^ interest;^ (2) preventing the state from "wearing down" an innocent defendant;^ (3)^ protecting^ the integrity of jury acquittals; (4) preventing judges from imposing punishments^ not authorized by the legislature; and (5) preventing excessive prosecutorial discretion.
I will illustrate my contention that the Supreme Court's historical approach has, in recent years,^ created^ results at^ odds^ with^ the^ double^ jeopardy^ clause's^ proper function by comparing a functional analysis to the^ Supreme^ Court's^ treatment^ of specific double^ jeopardy^ issues.^ The^ comparison will focus^ on^ the^ following^ three issues: (1) the extent to which the double jeopardy clause protects^ a^ person^ from multiple punishment in one proceeding; (2) the effect of acquittals^ upon^ the state's ability to prosecute; and (3) the possibility^ that^ the^ clause protects^ a^ convicted defendant from resentencing for the same offense.
A. The Extent of Multiple Punishment Protection
The issue of multiple punishment^ arises^ after^ a^ defendant^ has^ been^ convicted of a crime. Multiple punishment occurs when a court gives^ the^ convicted defendant two sentences for^ the same^ conduct.^ The^ multiple punishment^ issue^ can^ occur^ after the defendant has been convicted in multiple trials,^ but^ the multiple punishment
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issue is then subsumed in the multiple prosecution issue. 70 The multiple punishment issue, thus, is limited to whether a court may constitutionally impose legislatively authorized cumulative sentences in one proceeding. Although the Court had repeatedly said that the double jeopardy clause protects a defendant from multiple punishment,^71 the Court did not explicitly state whether a legislature may authorize cumulative sentences^ for^ the same^ conduct^ in^ one^ proceeding^ until^ recently.^
72 In Brown v. Ohio,^73 the Court seemed to recognize an absolute constitutional limitation on a state's ability to impose multiple punishment for the same conduct. The defendant in Brown had been sentenced under two different statutes, 74 but the Court, relying on Blockburger v. UnitedStates,^75 noted that two statutes do not have to proscribe exactly the same conduct for the conduct to be considered the "same offense" for double jeopardy purposes. Blockburger had held 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 that the other does not.' '76 In Blockburger itself, the defendant had been convicted and sentenced for violating two statutes through one sale of narcotics. The Court found that, under its test, the two statutes did not proscribe the same offense. One statute required proof that the defendant had not sold
clause can support an argument that the clause protects a defendant from multiple punishment imposed in one proceeding. 87 Conversely, the fact that the pleas of autrefois acquit and autrefois convict were designed to protect a defendant from multiple trials supports the opposite conclusion. Any collateral protection from multiple punishment may have merely been a result of the nature of common law criminal procedure. Common law criminal indictments generally accused a defendant of only one felony. Generally, a felony described one course of conduct and could result in only one sentence. 88 Under this procedure, multiple punishment for the same conduct could not normally exist without multiple trials. 8 9^ Thus, the common law pleas may not have been concerned with multiple punishment imposed in one proceeding. 90 In sum, historical arguments could support differing conclusions. Although history does not fully support the Court's interpretation of the double jeopardy clause in Hunter, one might still be able to defend the Hunter decision on the grounds that the legislative authorization of multiple punishment in that case did not interfere with four of the clause's five possible functions. 9 ' The case did not implicate the interest in the lawful administration of prescribed sentences 92 because the Missouri legislature clearly intended to allow the imposition of cumulative sentences. 93 The finality interest, the interest in preventing the government from "wearing down" the (^) defendant, and the interest (^) in jury acquittals were (^) also irrelevant because the sentencing occurred as part of one proceeding. The remaining of the five interests is in preventing harassment through the prosecutor's option to bring multiple charges. Before discussing the impact of the fifth interest, it should be noted that one commentator has suggested a sixth interest in this area, arguing that "the legislature's right to define punishment should be restricted under the double jeopardy clause by the doctrine of proportionality." 94 However, constitutional provisions other than the double jeopardy clause may protect these interests. The Hunter Court was careful to note that it only addressed the issue of cumulative punishment as it related to the double^ jeopardy^ clause.^95 Classifying an interest under a particular constitutional provision seems unim- portant if everyone agrees that some part of the constitution protects the interest. The
89. McKay, supra note 2, at 13-14. See also Comment, Twice in Jeopardy,supra note 71, at 266 n.13. Cf. Note, Consecutive Sentences in Single Prosecutions:JudicialMultiplication of Statutory Penalties, 67 YALE L.J. 916, 919 n. 17 (1958) which says that "[m]ultiple count indictments were not unusual at common law" and that "consecutive sentencing was possible....Nevertheless, pleas ofautrefoisacquit or autrefois convict apparently were considered (^) improper unless a former trial and verdict were shown." 90. SIGt.M, supra note 28, at 15; Note, Consecutive Sentences, supra note 89, at 918-20. 91. See supra text accompanying notes 42-69. 92. See supra text accompanying notes 63-65. 93. The armed criminal action statute said that "[t]he punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for a crime committed, by, with, or through the use, assistance, or aid of a dangerous or deadly weapon." Mo. REv. STAT. 571.015(1) (1978).
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Court's refusal to designate the protection of a^ particular^ interest^ as^ a^ function^ of^ the double jeopardy clause would be a problem only if^ protection^ of^ that^ interest were solely a function of the double jeopardy clause. Protection of the hypothetical sixth double jeopardy interest does not present such a problem because the proportionality of sentences is guaranteed by the eighth amendment's "cruel and unusual punish- ment" clause. 96 Under the eighth amendment, a person is protected from "excessive punishments.' , The fifth interest, the possibility that multiple charging under overlapping statutes will become a tool of harassment for prosecutors, presents^ a^ tougher^ issue than proportionality for two reasons. First, the Court has not explicitly recognized that protection from multiple charging is protected by constitutional provisions other than the double jeopardy clause. Second, the Court has also explicitly stated in Ball v. United States^98 that "even where the Clause bars cumulative punishment for a group of offenses, 'the Clause does not prohibit the State from prosecuting [the defendant] for such multiple offenses in a single prosecution.' "99 The Court in^ Ball also noted that it had "long acknowledged the Government's broad discretion to conduct criminal prosecutions." 100 Nevertheless, the state's^ ability^ to^ bring multiple^ charges^ may enhance^ the possibility that an innocent defendant may be found guilty because of a jury compromise. "The very fact that a defendant has been arrested, charged, and brought to trial on several charges may suggest to the jury^ that^ he must^ be^ guilty^ of^ at^ least one of those crimes." 10 1^ Splitting the punishment for an offense among several statutes therefore "serves only^ to^ strengthen^ the^ prosecution's^ hand."^1 0 2 However, the problem of jury compromise would always arise^ in^ a^ case that involves both a lesser-included and greater offense. For example, in a case like Brown v. Ohio,1^0 3 in which a state charges a defendant with car theft, the judge would presumably instruct the jury that they could alternatively find the defendant guilty of the lesser-included offense of joyriding. 104 Thus, the possibility of a compromise
also found that "[n]owhere in the legislative history is it stated that a big-time drug operator could be prosecuted and convicted for the separate predicate offenses as well as the CCE offense." 117 Therefore, the Court should have found that Congress did not authorize multiple punishments because of the result of the Blockburger test and the lack of explicit legislative intent. Nevertheless, the Court upheld the defendant's convictions because, after examining legislative history, the Court found that Congress intended to create "separate offenses." The Court seemed to be following the Ball Court's distinction between multiple charging and multiple punishment, and using the words "separate offenses" as a shorthand for multiple charging, which the Blockburger test does not affect. 118 However, the Court also gave the words "separate offenses" their literal meaning. The Court said that its examination of congressional intent revealed the existence of two separate offenses. When two offenses are truly separate, the Court does not need an explicit statement of^ intent^ to^ punish^ cumulatively.'^ 1 9^ "[Tihe presumption when Congress creates two distinct offenses is that it intends to permit cumulative sentences, and legislative silence on this specific^ issue^ does^ not^ establish ambiguity or rebut this presumption .... ,, 12 o The words "two distinct^ offenses"^ had previously meant offenses that did not overlap under the Blockburger test. In Garrett, however, the Court seemed to be saying that mere congressional intent to create separate offenses would, in fact, create separate offenses. Thus, the Court, for the first time, found it unnecessary to determine congressional intent to impose cumulative punishment for offenses deemed the same under the Blockburger test. The Court said a clear statement of intent to impose cumulative punishment was unnecessary "where Congress was not silent as to its intent to create separate offenses, notwithstanding Blockburger."^ 1 2^1 The Court cited Albernaz v. United States 22 as support for its rejection of a clear statement requirement.12 However, in Albernaz, the Court had found the two offenses in that case to be separate underthe Blockburger test. 124 The Albernaz Court then rejected any presumption of intent to separately punish offenses that are separate under the test. 12 The Garrett Court used language from Albernaz to justify deference to Congress even though the offenses in Garrett were the same under the test. The Court should return to its use of Blockburger as a means of defining separate offenses. The "dispositive question" should be whether Congress clearly intended to authorize cumulative punishment, 126 not whether it intended to create separate offenses. Otherwise, Congress could not only authorize multiple punishment for the
117. Id. at 784. 118. Id. at 782-84. See supra text accompanying notes 98-99. 119. Albernaz v. United States, 450 U.S. 333, 343-44 (1980).
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same offense under two statutes but could authorize successive prosecutions as well, simply by emphatically stating that the statutes actually proscribe separate offenses.1 27 If Garrett were read literally, the double jeopardy clause would^ neither bar legislative interferences with a defendant's finality nor "wearing down"^ interest through multiple prosecutions for the same offense, since Congress could use its ability to define "same offense" to immunize prosecutions from double jeopardy challenges.^128 The Court should also retain the Blockburger test as a useful tool of statutory construction when legislative intent is unclear.^ It^ is^ logical^ to^ presume^ (although^ the presumption should be rebuttable by a clear statement)^ that a^ rational^ legislature "ordinarily does not intend to punish the same^ [conduct]^ under^ two^ different statutes."- In conclusion, the Court's failure to recognize the double jeopardy clause's functions in Garrett may allow a legislature to negate important double jeopardy protections.^130
money than will an aborted one." 139 For example, a mistrial due to a hung jury occurs at the same stage of a trial as one ending in a verdict. Certainly, the state should not be allowed to appeal if the first trial ended in a final verdict and was free of legal errors. The state's prosecutorial interest is clearly satisfied even if a trier of fact finds the defendant not guilty, since the prosecutor has had "one full and fair opportunity to present his evidence to an impartial jury."' 140 However, the state's interest in "one full and fair proceeding" may not be satisfied if, for example, an acquittal is the result of a trial court's erroneous exclusion of crucial evidence. The state's interest in a full and fair opportunity to convict might include a right to appeal an acquittal based upon a legal error, or at least would require a court to balance the^ conflicting^ interests^ of^ the state^ and defendant.^1 4 1 Nevertheless, the values underlying the double jeopardy clause justify the distinction. First, the mere "availability of post-acquittal review" of an acquittal would "condemn^ all^ [acquitted]^ defendants to^ a^ continuing^ state^ of^ anxiety.^ ' 14^2 Consequently, the choice of a balancing test or an absolute prohibition results in either the state or the entire class of acquitted defendants (most of whom are undoubtedly not guilty beyond a reasonable doubt) "paying" for a trial judge's legal errors. The choice should be determined by society's "fundamental value determi- nation... that it is far worse to convict an innocent man than to let a guilty man go free." 143 The risk of arbitrary decision-making should fall on the state. 144 Therefore, a court need not balance the interests of the state and defendant in retrial if the first trial ended in an acquittal: "[i]f the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be
Professor Westen's jury nullification interest, the third possible function of the double jeopardy clause, would support the absoluteness of jury acquittals, but not judge acquittals. 1 4 6^ Jury nullification is a controversial subject' 47 because a jury can nullify not only out of leniency but also out of less benign motives; 148 however, the
validity of the absolute double jeopardy bar to reprosecution after jury acquittals does not depend upon a resolution of the controversy. Even without jury nullification, the fact that the state's prosecutorial interest is satisfied by a determination of guilt or innocence prevents a court from reviewing any acquittal. The jury has a de facto power to nullify because the double jeopardy clause prevents anyone from stopping it. 149 In sum, the Court's approach seems consistent with the values underlying the clause, but the correctness of^ the^ Court's^ interpretation^ is^ probably^ fortuitous.^150
2. The Defendant's Protectionfrom RetrialAfter Dismissal or Declarationof a Mistrial A trial (^) may end before acquittal in two ways: (1) through declaration of a mistrial or (2) (^) through dismissal. 15 According to the Court, the double jeopardy consequences of a declaration of mistrial depend on whether the declaration occurred (1) at the request or with the consent of the defendant; (2) at the request of the prosecutor; or (3) upon a sua sponte motion by the judge. In the first situation, the clause does not bar reprosecution, with one narrow exception. 152 In contrast, the clause bars a mistrial declared at the request of a prosecutor unless the prosecutor shows that the judge ended the first trial only out of "manifest necessity. ' 1 553 The "prototypical" (^) example of manifest (^) necessity to end (^) a trial is a hung jury. (^) 154 A sua sponte declaration of a mistrial is apparently also barred unless "manifest necessity" exists for discharging the jury.1^55 The Court seems to take a parallel course in the context of dismissals. In United States v. Scott,1^56 the Court found that a dismissal at the defendant's request was the functional equivalent of a mistrial declared at the defendant's request.^57 The Court's approach (^) in this area is not compelled by history. The Court might
in this century probably has been to protect whites from the consequences of their unlawful, often violent, racial oppression of blacks").
effect. However, the Kennedy Court held that a prosecutor's conduct would not bar retrial unless^ "intended^ to^ provoke^ the^ defendant^ into^ moving^ for^ a^ mistrial."^
169
The Court's standard does not adequately protect double jeopardy interests. The Court correctly noted that the defendant obviously has little real^ choice^ to^ continue^ a trial when the prosecution is^ intent^ on^ forcing the defendant^ to^ declare^ a^ mistrial.^170 However, other forms of harassment or overreaching can also leave the defendant with little choice. For example, the prosecution may be interested solely in subjecting the defendant to the harassment of^ trial^ or^ may be intent^ on^ ensuring^ a^ conviction^ (but not a mistrial) through unfairly prejudicial conduct. 171 Also, as a practical matter, "[iut is almost inconceivable that a defendant could prove that the prosecutor's deliberate misconduct was motivated by an intent to provoke a mistrial instead of an attempt simply to^ prejudice^ the^ defendant."'^172 Instead of focusing on the functions of the double jeopardy clause, the Kennedy Court applied the intent standard as it generally applies in cases involving prosecu- torial misconduct, 173 declaring that an "overreaching" standard would be too amorphous to apply. 174 However, Professor Steven Reiss^ has^ suggested^ that^ a non-intent standard based upon "plain error" would be concrete enough to prevent a "windfall" to the defendant from "prosecutorial mistakes of a strategic or tactical nature. ' 17 5^ A plain error standard is also logically appealing because plain^ errors^ in the evidentiary context do not have to be raised by the defendant.1 76 The error^ is^ of such magnitude that the defendant's failure to preserve an objection was obviously not a strategic choice.^ Similarly,^ a^ court^ should^ not^ treat^ a^ defendant's^ mistrial request provoked by plain^ errors^ in^ the^ conduct^ of^ a^ trial^ as^ a^ typical^ request^ for^ a mistrial, because in the former case the^ defendant will^ also^ have had little^ choice.^ Use of a plain error standard would safeguard the defendant's double jeopardy interests better than the Court's "intent" standard. The facts of the second case, Richardson v. United States, 177 implicated several double jeopardy doctrines. In Richardson, ajury acquitted the defendant of one count of distributing a controlled substance but could not come to a verdict on the other two counts in the indictment. Because of the jury's inability to agree on a verdict, the trial court declared a mistrial on the two remaining counts and scheduled a retrial.1^78 The defendant moved for a directed acquittal based on the legal insufficiency of the government's evidence, but^ the^ trial^ court denied^ the^ motion.1^79 The Court initially found that it had jurisdiction to hear the defendant's appeal of the denial of his motion despite the final judgment requirement of 28 U.S.C.
169. Oregon v. Kennedy, 456 U.S. 667, 679 (1982). 170. Id. at 673; Reiss, ProsecutorialIntent in Constitutional Criminal Procedure, 135 U. PA. L. REv. 1365, 1424-25 (1987). 171. Oregon v. Kennedy, 456 U.S. 667, 689 (1982) (Stevens, J., concurring).
§ 1291, relying on Abney v. United States. 180 The Abney Court had held that a ''colorable"181 (^) double (^) jeopardy claim could (^) be an appealable collateral (^) order even in the absence of a final judgment because, without immediate review, the double jeopardy claim that the state could not retry the defendant might be irretrievably lost. 182 The Court then turned to the merits of the defendant's claim. The defendant claimed that Burks v. United States t 83^ required immediate appellate review of his motion for acquittal. Burks had held that an appellate reversal of a conviction for legal insufficiency of the evidence was the equivalent of an acquittal, and, therefore, barred retrial.^1 8 4 The Court distinguished Burks on the ground that the reversal in Burks occurred after a final judgment. 185 From a functional standpoint, this does not seem to be a valid distinction. Even though the defendant has not actually been acquitted, retrial of a defendant who is (^) entitled to an acquittal at the trial court level will not serve a valid state prosecutorial interest. "When the prosecution has failed to present constitutionally sufficient evidence, it cannot complain of unfairness in being denied a second chance, and the interests in finality, shared by the defendant and society, strongly outweigh the reasons for a retrial. '^186 In Richardson, retrial could have subjected the defendant to further delay, expense, anxiety, and embarrassment for no valid state reason. The Court also rejected the defendant's double jeopardy claim because a hung jury is not "the equivalent of an acquittal." The judge's declaration of a mistrial was not "an event which terminated jeopardy." 187 The Court cited a long line of cases that had allowed retrial after a hung jury to buttress its contention that a hung jury does not terminate the original jeopardy. 188 In short, the Court justified retrial "by pretending that it was not really a new trial at all but was instead simply a 'continuation' (^) of the (^) original proceeding." 189 The hung jury cases, however, were "quite beside the point." 190 The defendant objected to the second trial notbecause the first trial ended in a hung jury but because
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