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Criminal Procedure • 5th Amendment
CRIMPRO#055
Legal Definition
A defendant can be retried: (1) after a hung jury; (2) after a mistrial for manifest necessity; and (3) after successful appeal. Upon retrial, however, the defendant cannot be retried for a more serious offense. Further, double jeopardy only bars retrial for the same offense by the same sovereign.
Plain English Explanation
There are a few occasions where a defendant may be retried for the same crimes without it counting as double jeopardy:
(1) If, at the end of a defendant's trial, the jury is hung, which means they are unable to agree to a verdict.
(2) If a mistrial occurs for "manifest necessity," which is a fancy way of saying, "something super unlikely happened and it messed everything up," like juror misconduct, or an attorney getting seriously ill, or something else that interrupts the trial due to no fault of the court, state, or defendant.
(3) The state may retry a defendant who has successfully appealed their conviction if the reversal was based on weight of evidence and not sufficiency of evidence. This can be a bit confusing, so let's explain what either means and then how to know which to apply in a fact pattern. Under Tibbs v. Florida, when an appellate court reverses a conviction based on the weight of the evidence, it means the court is essentially acting as a "13th juror," and disagreeing with the jury's finding of fact based on the evidence it was presented; in other words, this has the same legal effect as a hung jury, which allows the defendant to be retried. In contrast, under Burks v. United States, when an appellate court reverses a conviction based on the sufficiency of the evidence, it means the court is saying, "I don't know how the jury could have possibly convicted based on the evidence presented, as even in the best possibly light, it was not sufficient for conviction and no rational factfinder could have possibly found someone guilty based on it." In other words, this acts effectively as an acquittal, which means the defendant cannot be retried without causing a double jeopardy issue. So how do you know which to apply? The court will tell you. If the court's reversal says something about "weight," then retrial is okay; if it says something about "sufficiency," then retrial is not okay.
(4) Finally, though not actually a retrial, there is something called Separate Sovereigns, which means double jeopardy only applies when a specific sovereign (like a state or the federal government) attempts to try a defendant twice for the same crime. In other words, if Bob commits a crime that violates both state and federal law, then he can be tried and convicted in both state and federal court for the same crime.
(1) If, at the end of a defendant's trial, the jury is hung, which means they are unable to agree to a verdict.
(2) If a mistrial occurs for "manifest necessity," which is a fancy way of saying, "something super unlikely happened and it messed everything up," like juror misconduct, or an attorney getting seriously ill, or something else that interrupts the trial due to no fault of the court, state, or defendant.
(3) The state may retry a defendant who has successfully appealed their conviction if the reversal was based on weight of evidence and not sufficiency of evidence. This can be a bit confusing, so let's explain what either means and then how to know which to apply in a fact pattern. Under Tibbs v. Florida, when an appellate court reverses a conviction based on the weight of the evidence, it means the court is essentially acting as a "13th juror," and disagreeing with the jury's finding of fact based on the evidence it was presented; in other words, this has the same legal effect as a hung jury, which allows the defendant to be retried. In contrast, under Burks v. United States, when an appellate court reverses a conviction based on the sufficiency of the evidence, it means the court is saying, "I don't know how the jury could have possibly convicted based on the evidence presented, as even in the best possibly light, it was not sufficient for conviction and no rational factfinder could have possibly found someone guilty based on it." In other words, this acts effectively as an acquittal, which means the defendant cannot be retried without causing a double jeopardy issue. So how do you know which to apply? The court will tell you. If the court's reversal says something about "weight," then retrial is okay; if it says something about "sufficiency," then retrial is not okay.
(4) Finally, though not actually a retrial, there is something called Separate Sovereigns, which means double jeopardy only applies when a specific sovereign (like a state or the federal government) attempts to try a defendant twice for the same crime. In other words, if Bob commits a crime that violates both state and federal law, then he can be tried and convicted in both state and federal court for the same crime.
Related Concepts
In assessing double jeopardy, when do two crimes constitute the same offense?
What limitations does the 5th Amendment place on the prosecutor's comments?
When and how may a defendant assert their 5th Amendment Right Against Compelled Testimony?
When does jeopardy attach, and what prevents double jeopardy?
When may the 5th Amendment right against compelled testimony be eliminated?
