Double Jeopardy Protection from Successive Prosecution: A Proposed Approach

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Abstract only. The final version of this article is forthcoming in Georgetown Law Journal, Vol. 93.

Abstract

The Double Jeopardy Clause of the United States Constitution protects criminal defendants against being repeatedly prosecuted for the same offense. However, when two separate charges do not fit the definition of same offense, the prosecution is free to pursue those charges in successive proceedings. The Supreme Court has adopted a narrow definition of the same offense, leaving the government wide latitude to bring successive prosecutions based on a single criminal episode. This approach threatens the demise of double jeopardy protection against successive prosecution.

This article proposes an approach that will provide more effective double jeopardy protection while giving due consideration to legitimate government interests. First, the courts should adopt a broad definition of the term “same offence”, encompassing all charges arising from a single criminal transaction. The courts must recognize that the quest for a satisfactory narrower definition of same offense has been failed; the definitions that have been considered are either too narrow to give substance to double jeopardy protection or so broad that they imbue the protection with too great a reach. Second, the courts should temper the impact of the broad definition with a balancing approach. The courts should not enforce an absolute prohibition on successive prosecutions for the same offense. Instead, they should recognize that government interests in successive prosecution sometimes outweigh the defendant’s double jeopardy interests.

Disciplines

Criminal Law | Criminal Procedure

Date of this Version

July 2004

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