Double Jeopardy and Legislative Limitations The legal concept of "Double Jeopardy" is a rather simple one to define and to understand, but application of the Double Jeopardy standard is anything but easy or simple. On a very basic level, Double Jeopardy is a limitation in court proceedings that the same person cannot be tried for the same crime twice, regardless of the verdict or outcome of the first trial. But, as with all legal procedures and rules of order, there are exceptions to the rule. In cases where new evidence is found that can demonstrate a person's innocence, a trial is considered warranted because the outcome could not adversely effect the person already convicted. If however, the new evidence could prove an already determined innocent person guilty, then Double Jeopardy rules start being applicable. With the very broad nature of this topic, it is useful to demonstrate an understanding of the problems of multiple prosecutions and how they are limited and prevented by Double Jeopardy and an interpretation of the Double Jeopardy clause as a substantive limitation on the ability of legislature to create punishments and to define crimes. Double Jeopardy actively prevents multiple prosecutions and overlapping punishments for the same crime.

The Fifth Amendment to the Constitution of the United States clearly states that no person shall "be subject to the same offence or to be twice put in jeopardy of life or limb" (United States Constitution, 5th Amendment). The Double Jeopardy Clause protects criminal defendants from most government appeals of acquittals, even where "the acquittal was based upon an egregiously erroneous foundation" (Kappeler, 989). The ability to appeal criminal verdicts is asymmetrical. When a court or jury finds a criminal defendant not guilty, that determination is normally unassailable, because the losing party -- the government -- may not appeal. Criminal defendants, on the other hand, may appeal. There is one exception to this asymmetry -- prosecutors may appeal purely legal determinations which would require no further fact-finding. Determining whether appeal is available thus hinges on whether the issue to be appealed implicates solely legal determinations. Because prosecutors so seldom attempt to appeal acquittals, virtually no case law confronts the law-fact distinction in the acquittal appeal context. In fact, law-fact distinction jurisprudence suggests the exception permitting acquittal appeals is far more broad than recognized (Algona, 1131). The underlying framework of this Clause 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." (United States Constitution, 5th Amendment). The Supreme Court of the United States has repeatedly determined that the Double Jeopardy clause expressly protects individuals from being subjected to multiple prosecutions for the same offence. This protection extends itself to any person who has been criminally prosecuted, regardless of the outcome of the previous prosecution (which is called 'multiple prosecutions'). The Supreme Court has also determined that the Double Jeopardy Clause actively prohibits the infliction of multiple punishments for the same crime as well. A jury, even after announcing its verdict, is still a deliberating jury so long as it has not been discharged by the court; hence, the jury's possibility of reaching a "second" verdict here (after the judge declines to accept its first verdict and after reinstructions and further deliberation) actually constituted the only verdict is not a violation of Double Jeopardy (Chenoweth (b), 84)

It is this last point, the point of multiple punishments, that has caused legislative confusion and debate. The problem is whether or not a civil and criminal punishment for the same crime can be considered Double Jeopardy. This was certainly a point of contention in the bringing of suit against O.J. Simpson after he had been found to be not guilty in his criminal trial. The civil suit for "wrongful death," not being a criminal case could not have been considered double jeopardy for multiple prosecutions. But, had O.J. been sent to jail and then subsequently put on trial in the civil court and then made to pay a civil fine (which he was) then some courts could interpret that as violating the multiple punishments interpretation of the Double Jeopardy Clause. The Supreme Court has a mixed history, as do other courts, in dealing with this problem.

The interpretation of the Double Jeopardy Clause as...

But, there does appear to be some cause for reconsidering this as a blanket application. Since Ex-Parte Lange, however, the Supreme Court has continually held that the Double Jeopardy protections do indeed extend to both successive criminal punishments and any other successive punishments.
The counter argument, that Double Jeopardy only prohibits multiple prosecutions can be held up by the sheer bulk of criminal cases in which a person receives multiple punishments for commission of the same crime. By breaking down the entire series of action in the process of the commission of the crime, the state can easily punish the same person for the same umbrella crime with multiple penalties. For example, a person breaks into a home, rapes a minor, kills a pet, and steals a car. This series of events takes place over the course of two hours. As there are separate laws specifically prohibiting each of these individual behaviors it is quite logical to break down each action and to prosecute each in turn during the same trial - therefore resulting in one trial, multiple punishments for each crime convicted. Justice Scalia concluded that as the Due Process clause ensures that punishments do not exceed their legislated boundaries and that both the Cruel and Unusual Punishment and Excessive Fines clauses place limits upon those bounds, that the very nature of imposing multiple penalties on the same person in the same trial for different crimes (even if by different they are occurring simultaneously with other crimes committed by the very same person). In the cases of acquittals, multiple prosecution has been strictly limited. For example, if a person stopped for suspected drunk driving was taken to municipal court and acquitted, no other case could try the person again on the same crime.

The state of the record before the Law Division dictates rejection of defendant's argument that this appeal was barred by double jeopardy, since the municipal court record in this case was confined solely to the circumstances of the stop; because the Law Division judge's order granting defendant's motion to suppress was in no sense a resolution of the merits of the drunk-driving offense he was charged with, a judgment of acquittal should not have been entered -- the appropriate remedy was a remand to the municipal court -- and the use of the phrase "judgment of acquittal" was not a bar to the State's appeal (Chenoweth, 70).

Courts cannot, even in the event of a mistaken decision at a lower or higher level, put a person on trial for the same offence twice. Oddly, up until 1989, the Supreme Court seemed to have ignored the multiple punishment doctrine, relying primarily on the multiple prosecution doctrine for its Double Jeopardy analysis. While the Court did consider that imposition of a civil sanction could be barred by the Double Jeopardy Clause, it did so within the framework that a civil sanction imposed was not "essentially civil" but "essentially criminal," and thus constituted an illegal second criminal prosecution. Not until the late 1980's did the Court specifically invoke the prohibition against multiple punishments as an independent constitutional basis for a Double Jeopardy claim.

The key issue in our modern application of Double Jeopardy is whether or not it was intended to just limit the actions of the executive and judicial branches, or whether it was meant to include actions of the legislative branch. The Court's seeming unwillingness to decide if the Clause protects against legislative incursions upon Double Jeopardy values accounts for most of the confusion in Double Jeopardy jurisprudence. By this, it is meant that the Double Jeopardy Clause either does or does not limit Legislative ability to create new and additional punishments for the same crime. For example, does Double Jeopardy prevent Congress from making a law that allows for a person to be given additional punishments for every person secondarily affected by a murder (while current practice is to punish the crime itself, this hypothetical law would allow for the same crime's punishment to be based upon the number of people in the family and community directly affected by the crime and to add additional years of punishment). For example, the Court has been criticized for repeatedly shifting from one legal test for determining whether statutorily defined offenses are the "same" to another (DiBianco, 126). Some tests, such as the…