Double Jeopardy Clause as a Bar to Reintroducing Evidence (From Criminal Law Review, 1981, P 301-320, James G Carr, ed.)

• NCJ Number: 84495
• Author(s): D Nimmer
• Date Published: 1981
• Length: 20 pages
• Publication Format: Document
• Language: English
• Country: United States of America
• Note: Reprinted from the 'Yale Law Journal,' V 89, P 962-981

Annotation

Current double jeopardy protections are not adequate in cases of successive prosecutions in which jeopardy has attached in the first trial, trial has proceeded to completion, and appeal has not upset the judgment, but a liberalization of the application of collateral estoppel can improve protection.

Abstract

Under current law, a defendant, whether acquitted or convicted at a first trial, may be confronted with identical evidence at a second trial for an offense that could have been joined and tried in the initial prosecution. The clause bars such an action only if the offenses in each trial are the 'same.' Two centuries of interpretation, however, have provided no 'same offense' standard capable of fulfilling the double jeopardy clause's intent. Neither have res judicata nor collateral estoppel adequately supplemented the protection afforded by the same-offense tests. Res judicata requires that a final judgment on the merits foreclose any further litigation of the same claim between the same parties, and collateral estoppel applies against parties who have had a full and fair opportunity to litigate an issue and precludes relitigating facts determined in that prior adjudication. The proposed approach would bar introduction of the same evidence against the accused in successive criminal trials regardless of whether the first trial ended in acquittal or conviction. As a corollary effect, the proposal will prevent the government from introducing evidence of similar acts previously alleged against the defendant. A total of 95 footnotes are provided.