Fifth Amendment to the United States Constitution

Amendment V (the Fifth Amendment) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure. Its guarantees stem from English common law. For instance, grand juries and the phrase "due process" both trace their origin to common law.

Double jeopardy

Generally, individuals may be tried only once for a particular offense under the double jeopardy clause. Originally, the protection against double jeopardy did not extend to prosecutions in state courts. In Benton v. Maryland (1969), the Supreme Court "incorporated" the clause under the Fourteenth Amendment.

Related Topics:
Double jeopardy clause - State courts - Benton v. Maryland - 1969

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The Fifth Amendment refers to being put in "jeopardy of life or limb." The clause, however, has been interpreted as providing protection regarding "every indictment or information charging a party with a known and defined crime or misdemeanor." The clause, it has been held, does not prevent separate trials by different governments, and the state and federal governments are considered "separate sovereigns". Thus, one may be prosecuted for a crime in a state court, and also prosecuted for the same crime in another state, a foreign country, or (most commonly) in a federal court.

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Once acquitted, a defendant may not be retried for the same offense. Acquittals by both juries and judges are generally deemed final. A trial judge may normally enter an acquittal if he deems the evidence insufficient for conviction. If the judge makes this ruling before the jury reaches its verdict, his determination is final. If, however, the judge overrules a conviction by the jury, the prosecution may appeal to have the conviction reinstated.

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Defendants may not be retried following conviction except in limited circumstances. If a defendant appeals a decision and is successful in having it overturned, he is subject to retrial. An exception arises if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults. As noted above, if the trial court made a determination of evidentiary insufficiency, the determination would constitute a final acquittal; in Burks v. United States (1978), it was held that "it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient." Another exception arises in cases of conviction for lesser offenses. For instance, if a defendant is charged with murder in the first degree, is convicted by the jury of murder in the second degree, and then has the jury's conviction overturned on procedural grounds, he may be retried for second but not first degree murder; the jury, by convicting the defendant of second degree murder, is deemed to have implicitly acquitted him of first degree murder.

Related Topics:
Burks v. United States - 1978 - Murder

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The defendant may not be punished twice for the same offense. In certain circumstances, however, a sentence may be increased. It has been held that sentences do not have the same "finality" as acquittals, and may therefore be reviewed by the courts. Sentence increases may not, however, be made once the defendant has already begun serving his term of imprisonment. If a defendant's conviction is overturned on procedural grounds, the retrial may result in a harsher penalty than the original trial. The only exception is that the prosecution may not seek capital punishment in the retrial if the jury did not impose it in the original trial. The reason for this exception is that before imposing the death penalty the jury has to make several factual determinations and if the jury does not make these it is seen as the equivalent of an acquittal of a more serious offense.

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Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or terminates the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial. When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge acted in bad faith. In Oregon v. Kennedy (1982), the Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion."

Related Topics:
Oregon v. Kennedy - 1982

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Defendants may not more than once be placed in jeopardy for the "same offense." Sometimes, however, the same conduct may violate different statutes. In Blockburger v. United States (1932), the Supreme Court 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 which the other does not." For example, the test was applied in Brown v. Ohio (1977). The defendant had first been convicted of operating an automobile without the owner's consent, and later of stealing the same automobile. The Supreme Court concluded that the same evidence was necessary to prove both offenses, and that in effect there was only one offense. Therefore, it overturned the second conviction.

Related Topics:
Blockburger v. United States - 1932 - Brown v. Ohio - 1977

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In other cases, the same conduct may constitute multiple offenses under the same statute, for instance where one robs many individuals at the same time. There is no explicit bar to separate prosecutions for different offenses arising under the same "criminal transaction," but it is not permissible for the prosecution to relitigate facts already determined by a jury. In Ashe v. Swenson (1970), the defendant was accused of robbing seven poker players during a game. John Ashe was first tried for, and acquitted of, robbing only one of the players; the defense did not contest that a robbery actually took place. The state then tried the defendant for robbing the second player; stronger identification evidence led to a conviction. The Supreme Court, however, overturned the conviction. It was held that in the first trial, since the defense had not presented any evidence that there was no robbery, the jury's acquittal had to be based on the conclusion that the defendant's alibi was valid. Since one jury had held that the defendant was not present at the crime scene, the State could not relitigate the issue.

Related Topics:
Ashe v. Swenson - 1970 - Poker

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