Why Double Jeopardy May Not Protect You

by Wendy McElroy
Nov. 09, 2011

The legal doctrine of double jeopardy may be in flux (again), this time in a murder case being reviewed by the United States Supreme Court.

An October 11 CNN report opens, “The justices on Tuesday accepted the appeal of Alex Blueford, accused of killing his girlfriend's infant son. At issue is whether a criminal defendant can be retried on more serious charges if the jury deadlocks on a lesser charge.”

The jury had the option of finding Blueford guilty on any of four charges: capital murder, first-degree murder, manslaughter, and negligent homicide. They rejected the first two charges but deadlocked on the third one of manslaughter and did not discuss the fourth. A mistrial was declared. In refiling the case, however, the prosecutors reinstated the full slate of four charges.

The question before the Supreme Court is whether the jury's rejection of the capital and first-degree murder charges constitutes a de facto acquittal on those offenses? If it does, then retrying Blueford on those two charges may violate the double-jeopardy clause of the Fifth Amendment to the U.S. Constitution, which reads, “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” In short, a person may not be retried for the same offense after being acquitted. How does double jeopardy apply in cases in which there is a split decision on charges? State courts are divided on the question. The Supreme Court may well render the defining words.

Protection from double jeopardy is a constitutional right, but its scope and applicability have largely been defined by court precedents, such as the pending Blueford v. Arkansas. As a procedural defense in flux, double jeopardy deserves a closer look.

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