INTEREST BALANCING - AN ALTERNATIVE APPROACH TO RESOLUTION OF DOUBLE JEOPARDY CLAIMS

• NCJ Number: 15787
• Journal: Iowa Law Review Volume: 58 Issue: 4 Dated: (APRIL 1973) Pages: 1000-1022
• Author(s): ANON
• Date Published: 1973
• Length: 23 pages
• Corporate Author: University of Iowa
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

UNDER THIS APPROACH, RESOLUTION OF A DOUBLE JEOPARDY ISSUE REQUIRES A COMPROMISE OF THE INDIVIDUAL'S INTEREST IN NOT FACING UNDULY VEXATIOUS PROSECUTION AND THE PUBLIC'S INTEREST IN PUNISHING CRIMINAL CONDUCT.

Abstract

THE 1972 CASE OF UNITED STATES EX REL. JACKSON V. FOLLETTE INVOLVED THE PERMISSIBLE SCOPE OF A RETRIAL FOLLOWING A SUCCESSFUL APPEAL. THE SECOND CIRCUIT REJECTED THE TRADITIONAL 'SAME EVIDENCE' AND 'SAME TRANSACTION' TESTS AND ADOPTED THE BALANCING TEST TO DETERMINE WHETHER THE DEFENDANT'S RETRIAL FOR FELONY-MURDER FOLLOWING HIS SUCCESSFUL APPEAL OF A PREMEDIATED DELIBERATE MURDER CONVICTION CONSTITUTED A SECOND JEOPARDY FOR THE SAME OFFENSE. THIS COMMENT EXPLAINS AND EVALUATES THIS APPROACH BY CONTRASTING IT WITH THE TWO TESTS TRADITIONALLY USED TO DECIDE THE 'SAME OFFENSE' ISSUE OF DOUBLE JEOPARDY QUESTIONS. ALSO CONSIDERED ARE THE HISTORY AND CURRENT STATUS OF THE DOUBLE JEOPARDY PROTECTION. EXAMINED ARE THE ISSUES OF WHEN JEOPARDY ATTACHES, WHEN IT ENDS, AND WHAT CONSTITUTES THE SAME OFFENSE.