Abney v. United States, 250
Acquittal equivalence, 218
hung juries, 246–50
other types of mistrials, 229–32, 241–46
Acquittals: common law rule since A.D. 1200, 94
fraudulently obtained, 35, 217
undermined by Henry II, 79–80
Action theory, 136–39
as embedded in current judicial approaches to “same-offense,” 137
excluding mens rea elements of statutes, 140
Adams, United States v. See United States v. Adams
Aethelberht, King, 148
Albernaz v. United States, 107, 184–86
Albrecht v. United States, 105–6, 187–88
Amar, Akhil Reed: advocating “identical-offense” test, 29–30, 48–49, 116
and collateral estoppel, 201, 213
criticism of Brown v. Ohio, 66
critique of “identical-offense” test, 116–18
suggests Justice Scalia change his mind about “same-offense” text, 57
American Bar Association Criminal Justice
Section task force on double jeopardy, 194
American Tobacco Company v. United States, 170
Appeal (private prosecution in England), 27, 77
Appeals: of acquittals, 216–19
of convictions, 219–23
functioning as acquittal, 235–37
interlocutory appeal, right to, in double jeopardy cases, 129, 250
Appellate reversals: on grounds of insufficient evidence, 92–94
on other grounds, 38
Argersinger v. Hamlin, 129
Arizona v. Washington, 43, 90–92, 255
Ashe v. Swenson, 171, 183–84, 208
Attachment of jeopardy, 90, 250–52
Austin, J. L., 33
Australian Crimes Act, 20, 195
Autrefois acquit, autrefois attaint, autrefois convict. See Common law pleas in bar of double jeopardy
Ball v. United States, 220–23, 235, 237, 264, 265
Batchelder, Charles, 32
Becket, Saint Thomas, 1, 8, 74–76, 111
Benson, Egbert, 121
Benton v. Maryland, 264–65
Bishop, Joel: and the civil/criminal boundary, 120, 123
and implicit acquittal, 231
and mistrials, 238
and “same-offense,” 94, 116–17
shotgun hypothetical, 67
“single-battery” rule, 150
“single-larceny” rule, 157, 164
Black, Hugo, 24, 50, 55, 56, 59, 61, 64, 106, 114, 233–34, 243–44
Blackburn, State v. See State v. Blackburn
and attachment of jeopardy, 252
Commentaries, 27–32
effect of appeals, 220
emphasis on verdict, 88
equivalence of former acquittal and former conviction, 261
foreign trials barring English prosecutions, 191
and fraudulent acquittals, 217
influence of, 32, 88, 214–15, 234
mistrial cases, lack of rule, 229
and multiple punishment, 226
and the ordeal, 79
and “same offense,” 29–30, 33, 84, 97–98, 102, 116, 140, 169
and second jeopardies, 34–36, 214–15, 218, 222, 251, 252, 255, 256, 258, 267
as source of
Double Jeopardy Clause language, 7
superfluity principle, 72–73, 111
supporting legislative prerogative theory of double jeopardy, 18
universal maxim, 85–86
value to modern analysis, 50
Blameworthiness: basic account, 135–36
function of legislative definition, 17–27, 40–41
hierarchical patterns as creating “same offense,” 143–46
as inference about legislative intent, 166–67
as inference about legislative intent, dual sovereignty context, 191–94
varying by mode of commission as creating “same offense,” 146–49
Blockburger test of “same offense”: application to twenty-three state offenses, 170–75
applied only to statutory elements of different offenses, 99, 144
criticisms of, 60, 101–3, 112–13, 138, 146–48, 168–78, 197, 200
evidence to rebut, 194–98
inappropriate use to divide conduct into units of prosecution, 94, 183–84
as inflexible bar of successive prosecutions, 110–13
as mechanical solution, 138, 176–78,
as manifestation of common law understanding, 99–100
as presumption about legislative intent, 110, 194–98, 274
as textual understanding of “same offense” in Double Jeopardy Clause, 98–99
Blockburger v. United States, 98, 142
and the act-token issue, 149–50
using “single-impulse” test to divide units of prosecution, 159–60. See also Blockburger test of “same offense”
Boyce, Ronald M., 186
Brandeis, Louis, 105–6, 187–88
Braverman v. United States, 184–87
Brennan, William, 5, 243–44, 248
in favor of “same-transaction” test, 55
and hung juries, 193
Britton: private prosecutions and the king’s indictment, 28, 78, 95, 119
Brock v. North Carolina, 244–45
Brown v. Ohio, 15, 16, 23, 274
Blackmun’s dissent, 70
and Blockburger, 64–65
as endorsing Blackstone, 29
and legislative prerogative, 40–41
role of legislative intent, 106–7
as standard “same-offense” treatment, 26, 29, 32
and unit of prosecution analysis, 65, 70–71, 152–55, 187–88, 199
Burger, Warren, 93, 183–84, 237
rejecting “same transaction” test, 56
Burks v. United States, 92–94, 235–36, 237, 248–49, 268
Burton v. United States, 100–101
Cardozo, Benjamin, 257–58, 263, 270
Cassell, Paul: intent of Framers on dual sovereignty, 40
Cassella, Stefan, 126–27
Civil/criminal overlap, 31, 39–40, 119–33
civil forfeiture, 126–27
seven-part test for defining “criminal prosecution,” 123–24, 127–28, 132
Sixth Amendment cases used to draw the boundary, 128–30
solved by legislative prerogative, 131–33
tax proceedings, 124–25
Civil rights violations and dual sovereignty, 192
Coffey v. United States, 120
overruled, 210
Cohen, Felix, 42
Coke, Edmund, 11
act-equals-offense principle, 82–83
equivalence of former acquittal and former conviction, 261
private prosecutions and the king’s endictment, 28, 78–79
Collateral estoppel, 35, 201–2
as blameworthiness determination, 207–9, 213
in Canada, 212
as case-sensitive claim of former acquittal, 202
civil-criminal order of prosecution, 207–9
compared to autrefois acquit, 201
criminal-civil order of prosecution, 209–10
dual sovereignty exception, 212
in Glanville’s Treatise, 201
inapplicable to preclude issues against criminal defendants, 202
inapplicable to void conviction entered with acquittal, 211–12
in rem cases, 203
as issue preclusion, 201
same-parties requirement, 203–7
Common law crimes, 20
Common law pleas in bar of double jeopardy: autrefois acquit, 27–28, 83, 257, 260
autrefois attaint, 30–31, 72, 82–83, 224
autrefois convict, 29–30, 83–84, 260
former pardon, 31–32
Commonwealth v. Smith, 236–37
Compound-predicate offenses, 113, 178–83
Conduct divided into “units of prosecution,” 49, 95–96, 152–55, 183–87
auto theft/joyriding, 65–66
difference between finding one violation and counting violations, 156–61
possession offenses, 187–88
using “single impulse” analysis, 159–60
Continuing criminal enterprise offense (CCE), 118
as exception to traditional “same-offense” analysis, 25–27, 182
uncovering evidence to rebut Blockburger, 195
Cox, Stanley, 123
Crime and tort: historical evolution, 119
Critical legal studies: the indeterminancy of law, 42–45
De Grey, William, 203
Department of Revenue of Montana v. Kurth Ranch, 123, 124, 130–31
Justice Scalia’s dissent, 127
Diaz v. United States, 155
DiFrancesco, United States v. See United States v. DiFrancesco
Dixon, United States v. See United States v. Dixon
Double Jeopardy Clause: Blackstone as source of language, 7
compared to sentencing theory, 9–12
debate in First Congress, 5, 84–86, 120–22
legislative-prerogative understanding, 17–27
“life or limb” requirement, 119–33
as limitation only on prosecutors and judges, 14–27
Madison’s proposed language, 84–85, 214
as mandatory joinder, 12–14
as substantive limitation on the legislature, 8–12
Double jeopardy paradigm case, 46–49
Double jeopardy policies: to guarantee singularity of blameworthiness, 134–36
to manifest legislative intent, 38–39
to prevent prosecutorial harassment, 37, 50–52
to protect against unauthorized judgments of criminal blameworthiness, 63–67
Douglas, William O., 244–45
in favor of “same transaction” test, 55
Downum v. United States, 68–69, 237, 239–40, 242, 244, 246
Drubel, Richard: and appeals, 217–18, 220–21, 223
and attachment of jeopardy, 252
criticism of Brown v. Ohio, 66
Double Jeopardy Clause conceptualized as hierarchy of values, 115–16
and jury nullification, 259
and mistrials, 239
Dual sovereignty doctrine, 40, 188–94
and collateral estoppel, 212
criticisms, 190
established by 1847, 189
federal-Indian prosecutions, 189, 191–92
limited by Department of Justice policy, 193
in municipal-state context, 189–91
state-state prosecutions, 189, 191
state statutes barring state trial after federal trial, 193
Duchess of Kingston, Rex v. See Rex v. Duchess of Kingston
Due Process Clause: as conceptual home for mistrial cases decided on basis of fairness, 254
as limit on legislative prerogative to create substantive criminal offenses, 21–23, 24
as limit on unauthorized convictions, 62, 109
and proportional sentencing, 232
Dworkin, Ronald, 44
Ebeling v. Morgan, 157–60, 199
Eighth Amendment: as just deserts, 18
as limitation on legislature, 21–23, 68, 232
Elizabeth I, 81
Ex parte Henry, 55–56
Ex parte Lange, 109-10, 111-112, 132
Feinberg, Joel, 135, 140, 151, 157, 209
Fiss, Owen, 43
Fleta, 95
Ford, Gerald, 9
Forman v. United States, 235
Friedland, Martin, 18
on collateral estoppel, 201, 211, 212
as comparative law study, 114
criticism of dual sovereignty, 190
noting English rule against splitting a case, 55
recommending
mandatory joinder solution, 114
on units of prosecution, 152
and year-and-a-day rule, 80
Gaddis, United States v. See United States v. Gaddis
Garrett v. United States, 25–27, 112–13, 118, 195–96
Gavieres v. United States, 97–98
Gelston v. Hoyt, 203–7
Gore v. United States, 108, 196–98
Grady v. Corbin, 110, 182, 274
compared to Blockburger, 53–54, 144–45
criticism of, 54–55
defense of, 54
as middle ground between Blockburger and “same transaction” test, 56–57
overruled by United States v. Dixon, 57
requiring inquiry beyond Blockburger, 53
as two-tier test of “same offense,” 53
Grall, Jane, 139
“Gravamen” of offenses: as test of “same offense,” 134–35
Green v. United States: harassment language seen in a new light, 61–64
holding of, 231
as doctrine, 69, 237, 265, 267
inapplicable to guilty pleas, 225
language suggesting harassment as policy of Double Jeopardy Clause, 50, 61, 233
limited by later cases, 231–32
Guerra, Sandra, 193–94
Habitual offender statutes: permissible under multiple punishment theory, 228
Haddad, William, 168–69
Hale, Matthew: and “same-offense,” 33, 95, 97–98, 102, 111, 150–51, 261
Halper, United States v. See United States v. Halper
Harlan, John Marshall, 264–65
Harris v. Oklahoma, 179, 182–83
Harris v. Washington, 210–11
Henning, Peter: critique of United States v. Halper, 125, 127
Henry, Ex parte. See Ex parte Henry
Henry II, 1, 74–75, 79–80, 104, 111, 212, 264
History: Assize of Clarendon, 79
Assize of Northhampton, 79–80
Constitutions of Clarendon, 74
Digest of Justinian, 74
early English treatises, 77–79
English statute permitting reprosecution of Welsh defendants, 80
Greek law (Demosthenes), 73
Jewish law, 260–61
multiple-punishment prohibition, 111–12
Old Testament, 72
ordeal as trial, 79
Roman Republic, 73
thirteenth-century pleas in England, 76–77
Ur-Nammu, 79
History of English Law Before the Time of Edward I, The (Pollock and Maitland), 75
Hoag v. New Jersey, 208–9
Holmes, Oliver Wendell, 36, 144
and appeals of acquittals, 216, 263, 270–71
and collateral estoppel, 208–9
and continuing jeopardy, 85
and units of prosecution, 160–61
Holt, John, 81
Hotema v. United States, 204–5, 246–47
Houston v. Moore, 188–89
Hudson v. United States, 119, 125–27
Hung jury. See Mistrials Hunter, Jill, 80
Ianelli v. United States, 194–95
Illinois v. Somerville, 239–40, 243, 246
Illinois v. Vitale: suggesting departure from Blockburger, 53
Included offenses as “same offense,” 143. See also Blockburger test of “same offense”
Innocent III, 75
Ireland’s Case, 229–31, 237, 238, 255
Issue preclusion, 201. See also Collateral estoppel
Jenkins, United States v. See United States v. Jenkins
Johnson, William, 189
Jorn, United States v. See United States v. Jorn
Justices of Boston Municipal Court v. Lydon, 268–69
Kansas v. Hendricks, 126
Kant, Immanuel: island-community hypothetical, 9–10
retribution theory, 9–11
Kennedy v. Mendoza-Martinez, 123–24, 127–28, 132
Kepner v. United States, 263
King, Nancy, 124
relying on legislative intent to define “same offense,” 59–60
King v. Vandercomb: as test of “same offense,” 99–100, 101, 184
as test of variance, 261–62
Kring v. Missouri, 266
Lange, Ex parte. See Ex parte Lange
Legal realism: focus on policy analysis, 42–45
and functionalism, 104–5, 217–18
seeking unique right outcome for each case, 88, 231, 241, 252
use of policy instead of a rule, 145
Legislative intent: as basis for interpreting Double Jeopardy Clause, 17–27
Block-burger as presumption about, 110
converting double jeopardy into a procedural overlay on substantive criminal law, 40–41
determining the end of jeopardy, 68, 103–5
in dual sovereignty context, 192–94
functional defense of principle, 18–21
linguistic defense of principle, 17–18
manifested in Australian Crimes Act, 20
primacy in “same-offense”
role in due process and Eighth Amendment theory, 21–23
skeptical view of role in double jeopardy theory, 17
Lenity. See Rule of lenity
Lesser-included-offense test of “same offense.” See Blockburger test of “same offense”
“Life or limb”: drawing on common law usage, 128
Framers’ intent, 120–22
implicit in Sixth Amendment definitions of “criminal prosecution,” 128–30
Magna Carta usage, 120. See also Double Jeopardy Clause
Livermore, Samuel, 121
Madison, James: original double jeopardy language, 2, 51, 88, 111
and punishment, 122
role in drafting and approving Double Jeopardy Clause language, 84–86, 121–22
Magna Carta, 120
Mandatory joinder of offenses: criticism of that reading, 56–61
as one reading of Double Jeopardy Clause, 55–56
recommended by commentators, 114–15
as statutory solution to vexatious prosecutions, 114
Manifest necessity. See Mistrials
Marcus, Jonathan: advocates “identical-offense” test, 29–30, 48–49, 116
and collateral estoppel, 201, 213
criticism of Brown v. Ohio, 66
critique of Marcus’s “identical-offense” test, 116–18
suggests Justice Scalia change his mind about “same offense” test, 57
Marshall, Thurgood, 5, 23, 108, 198
in favor of “same-transaction” test, 55
Mason, United States v. See United States v. Mason
Mendelsohn, Samuel, 260–61
Mirror of Justices, The, 78, 95
Missouri v. Hunter, 11–14, 107–8, 132, 180, 197–98
Mistrials: hung jury as a type, 44, 88
hung jury, analyzed under acquittal-equivalence theory, 246–50
Ireland’s Case as example of need for a mistrial bar, 229–31
manifest necessity as grounds for mistrial, 43–44, 90–92
Model Penal Code approach, 51–52, 114
distinction between conduct and “attendant circumstances,” 139
Moore, Michael: and action theory, 95, 122, 136, 137, 139, 144, 155, 161–65
arguing that morality is “victim-relative,” 162
and compound-predicate offenses, 179
morally neutral statutory offenses, 19–20
rejecting harassment as double jeopardy policy, 52, 58–60, 110, 130–31, 233, 273
rejecting “single intent” test, 165
using action theory to define “same offense,” 87, 141–42, 150
Morgan v. Devine, 9
Mullock, David, 168–69
Multiple punishment: fine and prison term, 11–12
Kirchheimer’s social-evil approach, 115, 169
remedy for, 226–27
role of legislative intent, 11–12
Nielson, In re: as inconsistent with Block-burger, 52–53
as indicating that acquittals might have less preclusive effect than convictions, 262
as same blameworthy act, 96–97
Nixon, Richard, 9
O’Connor, Sandra Day, 43
Offenses that might be “same offense”: adultery and cohabitation, 96–97
aggravated murder and murder, 140
armed robbery and aggravated assault, 173
assault and murder, 155
auto theft and joyriding, 40, 64–65
bank robbery and assault with a dangerous weapon, 176
bank robbery and enhanced sentencing for another violent crime, 178, 195
bank robbery and entry with intent to commit a felony, 177
burglary and any crime committed inside the structure, 171
cohabitation, different periods with same women, 95–96
conspiracy with different conspirators, 187
conspiracy to import marijuana and conspiracy to distribute marijuana, 184–86
conspiracy to monopolize and conspiracy in restraint of trade, 170
conspiracy with multiple goals, 184–86
conspiracy and the planned substantive crime, 144–45, 194–95
continuing criminal enterprise (CCE) and any predicate felony, 25–27
criminal restraint (multiple victims), 171
cutting into six mailbags, 157–60
false statement and currency reporting violation, 176–77
felony murder and premeditated murder, 60, 147
felony murder and the underlying felony, 179–83
larceny and burglary, 150
larceny and diverting electricity, 147
larceny at night, larceny from the person, and grand larceny, 146, 148–49
murder of more than one victim, 161–64
poker hands, 157
RICO and any predicate felony, 182–83
rape and statutory rape, 141
robbery in a dwelling and robbery in the nighttime, 60
robbery of more than one victim, 171–72; 1,800
sales of beer without a license, 156
sales of bread on Sunday, 154
selling narcotics not from original package and selling narcotics without order of purchaser, 34, 98, 142
selling narcotics with knowledge of unlawful importation and other selling offenses, 34, 197
theft and receiving stolen property, 171
violations of Fair Labor Standards Act, 151
weapons offenses, 171
Ohio v. Johnson, 23–24, 265, 266–67
Oppenheimer, United States v. See United States v. Oppenheimer
Oregon v. Kennedy, 240–41
analyzed under acquittal-equivalence theory, 245–46
Palko v. Connecticut, 256–58, 259, 260, 261, 263, 264–65
Patterson v. New York, 21
Perez, United States v. See United States v. Perez
Perkins, Rollin M., 186
Policy analysis: as part of interpretive function of judges, 42–45
Pollock, Frederick, and Frederic William Maitland, 75
Polybius, 73
Posner, Richard, 43
Poulin, Anne Bowen: defense of Grady v. Corbin, 54
and fraudulent acquittals, 217
and inconsistent verdicts, 211–12
and prosecutorial misconduct, 236–37
RICO and double jeopardy, 182
Powell, United States v. See United States v. Powell
Powell, Lewis, 251
Prince v. United States, 177–78
Preciose, State v. See State v. Preciose
distinct versus overlapping offenses, 118
reading fairness into same-offense test, 26, 57, 79, 233, 240, 241, 242
and hung juries, 248
Resentencing, 38
Rex v. Duchess of Kingston, 203–7, 212
Richardson, Eli: and Blockburger’s dual nature, 110
rejecting harassment as separate double jeopardy policy, 59
rejecting “same transaction” test, 56
Richardson v. United States, 247–50, 269
Richman, Daniel: double jeopardy and the plea bargaining process, 223
Ricketts v. Adamson, 224–25
RICO (Racketeer Influenced and Corrupt Organizations), 113, 182–83
Robinson, Paul, 139
Ronner, Amy, 59
Rudstein, David: civil/criminal overlap, 125
fraudulent acquittals, 35, 217
Rule of lenity, 33, 149, 153–56, 158, 177–78, 195
Rutledge, Wiley, 146
Same blameworthy act test of “same offense,” 70–71
applied to federal False Statements Act, 176–77
applied to twenty-three state counts and compared to Blockburger, 174–75
compared to Blockburger, 138, 168–75
evidence to rebut, 194–98
in Garrett v. United States, 25–26
as substantive solution to “same offense” problem, 138
as way to divide conduct into units of prosecution, 183–87. See also Action theory; Conduct divided into “units of prosecution”
“Same offense”: early United States
Supreme Court definitions, 95–101
as “gravamen” of offenses, 134–34
Hale’s seventeenth-century definition, 95
number of modern statutory criminal offenses, 7
as “same transaction,” 56
thirteenth-century definitions, 95. See also Blockburger test of “same offense”; Conduct divided into “units of prosecution”; Offenses that might be “same offense”; Same blameworth act test of “same offense”
Sanabria v. United States, 217–18
Sanford, United States v. See United States v. Sanford
Sanges, United States v. See United States v. Sanges
author of United States v. Dixon, 57, 180
Blockburger as best meaning of “same offense,” 98–101, 143
Blockburger as constitutional barrier to successive prosecutions, 110, 112, 113, 274
and the civil/criminal overlap, 123–24, 126, 127, 131
Double Jeopardy Clause inapplicable in single trial cases, 13, 14, 16, 109
and “same offense,” 84
and Vandercomb, 261
Schad v. Arizona, 21–23
Schulhofer, Stephen: mistrials, 36, 51, 239, 252
two-tier standard for deciding when a mistrial bars second trial, 254–55
Scott, United States v. See United States v. Scott
Second jeopardies: as manifesting Black-stone’s pleas in bar, 87–94
Sentence enhancement: as not creating a jeopardy bar, 268
Sentencing theory: compared to double jeopardy, 9–12, 268
Shellenberger, James: effect of common law double jeopardy pleas on modern doctrine, 254
Sherman, Roger, 121
endorsing Kirchheimer’s social-evil test for multiple punishment, 114
identifying successive prosecutions as principal double jeopardy concern, 52
noting complexity of same-offense inquiry, 94
recommending mandatory joinder solution, 114
recommending procedural limitations on prosecution’s ability to withdraw a case, 255
Simon, Larry: draws on J. L. Austin to critique “same act” test, 33, 136, 151
recommends mandatory joinder solution, 114–15
Simpson v. United States, 178, 195
Single trial/successive prosecution unity of analysis, 58–60, 109–113
Smith, Commonwealth v. See Commonwealth v. Smith
rejecting differences in indictment as way to divide conduct into units of prosecution, 184, 187–88
Spaziano v. Florida, 268
State v. Blackburn, 180
State v. Preciose, 170–75
Stevens, John Paul, 23, 108, 126, 241
Stewart, Potter, 107
Commentaries on the Constitution, 223
and mistrials, 88–92, 215, 238–39
Strazzella, James: appeals and double jeopardy, 216, 234
effect of common law double jeopardy please on modern doctrine, 254
Tateo, United States v. See United States v. Tateo
Theis, William H., 186–87
Trono v. United States, 265–66
Turner’s Case, 100
United States v. Adams, 160–61
United States v. DiFrancesco, 231–32
United States v. Dixon, 57, 110, 124, 179–80
United States v. Gaddis, 178
United States v. Halper, 120, 122–23, 125, 127, 128, 130, 132, 209
analyzed under legislative-prerogative theory, 130–131
United States v. Jenkins, 64, 232–34
United States v. Jorn, 64, 243–44
United States v. Mason, 205–6, 212
United States v. Oppenheimer, 208–9
United States v. Perez, 87–90, 215, 253
distinguished from acquittal evidence, 247
United States v. Powell, 211
United States v. Sanford, 251, 252
United States v. Sanges, 263, 270
United States v. Scott, 64, 233–34, 236, 237, 243
United States v. Tateo, 220
United States v. Ursery, 126–27
United States v. Watts, 228
United States v. Wilson, 234
United States v. Woodward, 176–77
Unit of prosecution. See Conduct divided into “units of prosecution”
Ursery, United States v. See United States v. Ursery
Vandercomb, King v. See King v. Vander-comb
Variance: as a rule of permitting a second trial for the same offense, 261–62
Vinson, Fred, 265
Warren, Earl: in favor of “same-transaction” text, 55
Washington, Bushrod, 89–90, 103, 105–6, 124, 131, 175, 189–91, 274
Watts, United States v. See United States v. Watts
Westen, Peter: and appeals, 217–18, 220–21, 223
and attachment of jeopardy, 252
criticism of Brown v. Ohio, 66
Double Jeopardy Clause conceptualized as hierarchy of values, 115–16
and jury nullification, 259
and mistrials, 239
Whalen v. United States, 179–83, 195
Wharton’s Criminal Law: “impulse” test for separating units of prosecution, 149–50
Wharton’s Rule, as rebutting Blockburger, 194–95
White, Byron, 236
Wilson, United States v. See United States v. Wilson
Witte v. United States, 227–28
Woodward, United States v. See United States v. Woodward