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Three Faces of Double Jeopardy - Reflections on Government Appeals of Criminal Sentences

NCJ Number
Michigan Law Review Volume: 78 Issue: 7 Dated: (June 1980) Pages: 1001-1065
P Westen
Date Published
65 pages
Three aspects of double jeopardy are identified and discussed as they apply to situations where prosecutors wish to unilaterally appeal decisions to higher courts for the purpose of increasing sentences.
Three fifth amendment guarantees against double jeopardy have been identified and used by the Supreme Court of the United States: cases in which the defendant has been acquitted, cases in which the defendant has been convicted, and cases in which the defendant might suffer multiple prosecution for the same offense. Prohibition of retrial following an acquittal is based on the defendant's expectation of trial finality, jury statements of innocence, and the jury prerogative to acquit against evidence. Prohibition of retrial following a conviction is based on the defendant's right to assume that a final verdict has been rendered and to avoid the hardship of another trial. Prohibition of retrial where defendants may receive multiple punishment for the same offense is centered on the question of whether legislative criminal law intent has been determined to allow sentences and offenses to accumulate or not. These three prohibitions are illustrated with a discussion of the question of double jeopardy in the case of North Carolina versus Pearce, in which the defendant's successful appeal resulted in a retrial and a harsher sentence, and a reappeal on double jeopardy grounds. Prohibitions on retrials of acquittals are limited to those in which jury verdicts of not guilty have been rendered. So long as government appeals of sentences and appellate court sentences are authorized by domestic law, double punishment for a crime does not exist. The government's right to appeal erroneous sentences outweighs the defendant's interests in finality and does not necessarily result in a repetition of the trial ordeal; however, government appeals are limited to cases where the appeal is neither avoidable nor part of a systematic prosecution approach to conviction. Case notes are given.