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US Supreme Court Takes Up Double Jeopardy Case

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The US Supreme Court today took up a double jeopardy case, Evans v. Michigan, No. 11-1327, for argument and decision next term.  This case arises on direct appeal, so there are no AEDPA issues.  The Michigan Supreme Court opinion is here.  The first paragraph is:

This case presents the question whether the Double Jeopardy Clauses of the state and federal constitutions bar defendant's retrial. Defendant was accused of burning a vacant house and charged on that basis with burning other real property in violation of MCL 750.73. There is no dispute that the trial court wrongly added an extraneous element to the statute under which defendant was charged. Specifically, the trial court ruled that the prosecution was required to present proof that the burned house was not a dwelling, which is not a required element of MCL 750.73. As a result of the trial court's erroneous addition of this extraneous element to the charged offense, it granted defendant's motion for a directed verdict and entered an order of acquittal, dismissing the case. We hold that when a trial court grants a defendant's motion for a directed verdict on the basis of an error of law that did not resolve any factual element of the charged offense, the trial court's ruling does not constitute an acquittal for the purposes of double jeopardy and retrial is therefore not barred. Accordingly, because the trial court's actions did not constitute an acquittal for the purposes of double jeopardy, we affirm the judgment of the Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.
The Question Presented in the US Supreme Court is:

Does the Double Jeopardy Clause bar retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact?

8 Comments

Did the defense urge the trial court to declare that the non-element actually was an element, thus paving the way for the "acquittal?"

Yes, the defense moved for a directed verdict and argued that non-dwelling was an element of the offense.

It's a common problem in criminal law, defining greater and lesser offenses. When writing definitions, we should keep in mind that some elements may be uncertain. If the greater is defined as A+B+C, the lesser should be defined as A+B, not "A+B and not C." With the latter definition, when A+B is true beyond a reasonable doubt and C cannot be proved either way, then the defendant cannot be convicted of any crime, a result that makes no sense.

The right result, when A+B can be proved beyond a reasonable doubt and C is probably true but can't be proved, is that the defendant is convicted of the lesser offense.

Thanks, Kent.

It seems to me that when the defense asks for an erroneous ruling, gets it, then also seeks and gets an acquittal as a direct result of the ruling they asked for, the DJC does not bar retrial. Any other result rewards bamboozling the judge. It's a species of the invited error doctrine: A party cannot benefit by an error it labors to bring about.

Should the reason for an acquittal matter, for DJ purposes? Seems to me that one complaint that is made is that Constitutional law is made up of tons of distinctions that have no home in the text. Does that happen here if we say that a judge-directed acquittal due to lack of evidence bars retrial, but that a judge-directed acquittal on these facts does not.

I'll have to read the briefs.

federalist --

I believe the theory has two components. The first is that no litigant can profit from his successful efforts to induce error. The second is that, in a trial that comes to an end because the defendant has sponsored such an error, the particular proceeding may have ended, but jeopardy is continuing. The theory of continuing jeopardy is most easily seen in a somewhat different context, that being the hung jury.

One might make a plausible argument that no retrial should be permitted after the government has had a fair shot and failed to convince all 12 jurors, but the Supreme Court has never seen it that way. Instead, the Court has held that the deadlock means no more than that the defendant's jeopardy has not been resolved -- that it continues -- and that a second jury can be convened to try to resolve it.

We'll see Bill. Of course, in the context of an erroneous judge-directed acquittal for insufficient evidence, there would have usually been a motion by the defense counsel--would this be invited error?

The other thing--is SCOTUS really going to come up with a constitutional definition of acquittal?

This looks like a very difficult case to me.

Although Bill is generally correct that a party is usually barred from profiting from a legal error that party has induced, I'm not sure that applies necessarily in this context. For example, if the defense had convinced a jury to acquit on the same erroneous basis, there would be no question that double jeopardy would bar any retrial no matter how clearly erroneous the jury's decision may have been. Is there any difference that the decisionmaker here was the judge? I'm not so sure. It will be interesting to see how this comes out.

I'll defer to those (notablogger and Bill) who do this for a living. The recent case (Blueford v. Arkansas) would seem to cut for the defendant here. If an acquittal is an acquittal, the defendant wins. The plausible counterargument, it seems to me, is that if the "acquittal" can be appealed (because it's based on erroneous interpretation of the law), then retrial would be ok. Ultimately, it seems to me that if the trial court finds for the defendant and labels it an acquittal, then the Court is probably unlikely to look through that term to separate DJ acquittals from other acquittals. Note that I say trial court--I don't think anyone would argue that if an intermediate court of appeals held that there was insufficient evidence to convict that the state couldn't appeal that decision to the state court of last resort or even SCOTUS.

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