NCJ Number
115126
Date Published
1987
Length
64 pages
Annotation
This paper examines the language, history, and purpose of the double jeopardy clause of the fifth amendment, concluding that the clause prohibits government appeals in felony cases whenever a reversal would result in a new trial.
Abstract
Although historical evidence suggests that the prohibition on government appeals which would result in new trials does not apply where the acquittal was based on a defective indictment, this report does not recommend challenging a venerable line of cases to the contrary. Although the evidence is strong that the prohibition applies only to felonies, precedent invoking the double jeopardy clause in misdemeanor cases is established firmly enough to counsel against urging the distinction between felonies and misdemeanors. This report recommends that the Justice Department consider seeking explicit judicial recognition of the government's right to appeal errors of law in a bench trial when findings of fact clearly support a guilty verdict on proper application of the substantive law. Such an appeal right is supported by the fifth amendment's original meaning and does not appear to be at odds with recent case law. The report suggests that a further study be done to explore additional ways of accommodating the government's need to seek correction of legal error while preserving the defendant's constitutional immunity from retrial. 155 footnotes. (Author summary modified)