No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
A basic purpose of the Double Jeopardy Clause is to protect a defendant
against a second prosecution for the same offense after conviction. 1 It is
no man can be twice lawfully punished for the same offense. 2 Of course, the defendant’s interest in finality, which informs much of double jeopardy jurisprudence, is quite attenuated following conviction, and he will most likely appeal, whereas the prosecution will ordinarily be content with its judgment. 3 The situation involving reprosecution ordinarily arises, therefore, only in the context of successful defense appeals and controversies over punishment.
Generally, a defendant who is successful in having his conviction set aside on appeal may be tried again for the same offense, the assumption being made in the first case on the subject that, by appealing, a defendant has
waived his objection to further prosecution by challenging the original conviction. 4 Although it has characterized the
waiver theory as
totally unsound and indefensible, 5 the Court has been hesitant in formulating a new theory in maintaining the practice. 6
An exception to full application of the retrial rule exists, however, when defendant on trial for an offense is convicted of a lesser offense and succeeds in having that conviction set aside. Thus, in Green v. United States, 7 the defendant had been placed on trial for first degree murder but convicted of second degree murder; the Court held that, following reversal of that conviction, he could not be tried again for first degree murder, although he certainly could be for second degree murder, on the theory that the first verdict was an implicit acquittal of the first degree murder charge. 8 Even though the Court thought the jury’s action in the first trial was clearly erroneous, the Double Jeopardy Clause required that the jury’s implicit acquittal be respected. 9
Still another exception arises out of appellate reversals grounded on evidentiary insufficiency. Thus, in Burks v. United States, 10 the appellate court set aside the defendant’s conviction on the basis that the prosecution had failed to rebut defendant’s proof of insanity. In directing that the defendant could not be retried, the Court observed that if the trial court
had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have been entered and, of course, petitioner could not be retried for the same offense. . . . [I]t should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient. 11 The policy underlying the clause of not allowing the prosecution to make repeated efforts to convict forecloses giving the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. On the other hand, if a reviewing court reverses a jury conviction because of its disagreement on the weight rather than the sufficiency of the evidence, retrial is permitted; the appellate court’s decision does not mean that acquittal was the only proper course, hence the deference required for acquittals is not merited. 12 Also, the Burks rule does not bar reprosecution following a reversal based on erroneous admission of evidence, even if the remaining properly admitted evidence would be insufficient to convict. 13