When Does Double Jeopardy Apply?

When does double jeopardy apply in a criminal case in South Carolina?

Double jeopardy bars a second prosecution if you’ve been acquitted or convicted of a criminal charge and the state tries to charge you with the exact same crime based on the same facts a second time.

But what if you are acquitted or convicted of a different crime based on the same facts? What if you are acquitted at trial of one charge, but the jurors cannot reach a verdict as to other charges based on the same facts? Can you be tried a second time?

Below, I’ll discuss the basics of double jeopardy in SC courts, including:

• When double jeopardy applies,
• When double jeopardy does not apply, and
• When issue preclusion can result in double jeopardy.

When Does Double Jeopardy Apply?

No person can be tried twice for the same crime – the protection against “double jeopardy” is in both the US and SC Constitutions.

But what is “the same crime?” SC and federal courts have grappled with this question in a long series of appellate opinions, defining when a crime is “the same crime” for purposes of double jeopardy and sometimes with unexpected results.

As a starting point, double jeopardy applies when you have been either acquitted or convicted of a crime, and the State or federal government attempts to charge you with that same crime based on the same facts a second time. For example, if you were charged with your neighbor’s murder and a jury acquits you at trial, the state cannot simply charge you with your neighbor’s murder again.

Similarly, you cannot be punished twice for the same crime based on the same facts.

In some cases, however, the second crime may be essentially the same as the first crime, but with a different name…

Same Elements Test – Blockburger

In Blockburger v. US, the US Supreme Court created a test for determining whether, when the government charges a person under two distinct statutory provisions, the two offenses constitute a single offense (and therefore double jeopardy would prevent the additional charge) or two separate offenses (in which case double jeopardy does not apply).

Whether it is a situation where the government has charged a person with two crimes based on the same facts, or the government has charged a person with both a crime and a lesser included offense of that crime, the question is whether each requires proof of a fact that the other does not.

For example, if you are charged with public disorderly conduct and breach of peace, and both charges are based solely on the same allegation that you were grossly intoxicated in public at the same place and time, one of the prosecutions should be barred under double jeopardy.

Or, if a jury acquits you of trafficking in cocaine greater than 200 grams, the prosecutor cannot charge you again and retry you for trafficking in cocaine greater than 28 grams (although the jury at the first trial could have convicted you of the lesser included offense of trafficking greater than 28 grams), because all elements that must be proven for the acquitted offense of trafficking greater than 200 grams are also present in the lesser included offense of trafficking greater than 28 grams.

Double Jeopardy After a Mistrial

In most cases, double jeopardy does not bar a retrial after a mistrial – unless the mistrial was caused by the prosecution.

For example, in State v. Parker, the SC Supreme Court held that double jeopardy does bar a retrial when the prosecutor “intentionally provoked defense counsel into moving for a mistrial:

“Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S. Ct. 2083, 2089 (1982).[1] Hence, a properly granted mistrial poses no double jeopardy bar to a subsequent prosecution. “Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Id. at 676, 102 S. Ct. at 2089; see also State v. Mathis, 359 S.C. 450, 460, 597 S.E.2d 872, 877 (Ct. App. 2004) (noting that a defendant who has moved for and been granted a mistrial may invoke the Double Jeopardy Clause to prevent a second prosecution when the prosecutor’s conduct giving rise to the mistrial was intended to provoke him into moving for the mistrial). Hence, the determination of whether double jeopardy attaches depends upon whether the prosecutorial conduct was undertaken with the intent to subvert the Double Jeopardy Clause. State v. Coleman, 365 S.C. 258, 263, 616 S.E.2d 444, 447 (Ct. App. 2005) (citation omitted). “The trial court’s finding concerning the prosecutor’s intent is a factual one and will not be disturbed on appeal unless clearly erroneous.” Id. (citation omitted).

When Double Jeopardy Does Not Apply

Double jeopardy does not apply when:

• The second offense does not require proof of the same facts as the first offense,
• The second offense is administrative in nature and not criminal (winning an implied consent hearing does not prevent a later trial for driving under the influence),
• A necessary issue for the second conviction was not decided in the first prosecution (see issue preclusion below), or
• The two offenses are prosecuted by separate sovereigns – for example, the federal government and a state government or a foreign government (although some crimes may not be prosecuted in both state and federal court by statute, it is not prevented by the Double Jeopardy Clause).

Issue Preclusion – Double Jeopardy May Apply When a Necessary Issue was Previously Decided

In Ashe v. Swenson and Yeager v. United States, the US Supreme Court held that issue preclusion can also trigger the Double Jeopardy Clause – when there is an acquittal on some charges but a hung jury and a mistrial on others, when does that bar retrial on the charges on which the jurors could not agree?

When an issue was decided in the first trial (as part of the acquittal) that was an essential element of the offense the government is trying to re-prosecute (after a hung jury and mistrial), the second trial is barred by double jeopardy.

First, the court must decide what issues the first jury necessarily decided by their verdict of acquittal at the first trial. Second, the court must whether any necessarily decided issue was an “essential element” of the offense charged in the second trial.

State v. Henley

For example, in State v. Henley, the SC Court of Appeals found that, when a defendant was acquitted of larceny but there was a hung jury and mistrial as to his burglary charges, double jeopardy did not bar his retrial on the burglary charges because the acquittal of larceny did not decide any issue that was an essential element of the burglary charges.

Burglary requires proof that a person entered a dwelling without consent and with the intent to commit a crime inside – that crime isn’t necessarily larceny, however, and the jury could have decided that the defendant was going to commit a different crime inside the dwelling.

When the first jury could have thought that the crime involved was larceny or could have thought that the crime involved was something else, the court won’t speculate as to what issue was decided. Furthermore, a conviction for larceny is not a necessary element of burglary even if the jurors believed larceny was the predicate crime. The defendant didn’t need to commit larceny to be convicted of burglary; he only needed to have the intent to commit a larceny or other crime.

Ervin v. State

Similarly, in Ervin v. State, the SC Supreme Court held that an acquittal for possession of a firearm during a violent crime and a hung jury on related trafficking charges did not bar re-prosecution for the trafficking charges.

There were multiple possible reasons for the jury’s acquittal on the firearms charge (the state did not prove the trafficking offense, the state did not prove the defendant possessed the firearm, or the state did not prove the required nexus between the firearm and the trafficking offense).

Furthermore, although a conviction for possession of a firearm during a violent crime requires a conviction for a violent crime, a conviction for trafficking does not require proof that the defendant possessed a firearm – the jury’s acquittal on the firearms offense has no bearing on the trafficking charges, and the state can retry the defendant for trafficking even if the previous jury decided the defendant did not possess a firearm.

Got Axelrod?

If you have been charged with a crime in SC, if you have been convicted of a crime and need help filing your appeal, or if you won an appeal and need help retrying your case, call now at 843-353-3449 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.