23.2 Double Jeopardy, Cruel & Unusual Punishment, Appeal & Error
Key Takeaways
- Jeopardy attaches when the jury is sworn, when the first witness is sworn in a bench trial, or when a guilty plea is accepted; retrial is then barred unless the jury hangs, manifest necessity requires a mistrial, the defendant seeks a mistrial not goaded by the prosecution, or the defendant wins a reversal on grounds other than insufficient evidence.
- Offenses are the same under Blockburger unless each requires proof of a fact the other does not, so conviction or acquittal of a lesser-included offense bars prosecution for the greater, and collateral estoppel bars relitigating an ultimate fact necessarily decided in the defendant's favor (Ashe v. Swenson).
- Separate sovereigns—the federal government, each state, and Indian tribes—may prosecute the same conduct (Gamble), but a state and its municipalities are one sovereign (Waller v. Florida).
- The Eighth Amendment forbids grossly disproportionate sentences, the death penalty for nonhomicide crimes against individuals, for offenders under 18, and for intellectually disabled people, life without parole for juvenile nonhomicide offenders and mandatory life without parole for any juvenile, excessive fines (Timbs), and punishment for status (Robinson), but it does not bar enforcing public-camping bans against homeless people (City of Grants Pass v. Johnson, 2024).
- Most constitutional errors are reviewed for harmlessness beyond a reasonable doubt (Chapman), while structural errors—such as complete denial of counsel, a biased judge, or denial of counsel of choice or a public trial—require automatic reversal.
23.2 Double Jeopardy, Cruel & Unusual Punishment, Appeal & Error
The final category of NCBE's Criminal Procedure outline covers what happens after or instead of a completed trial: whether the defendant may be tried again, whether a sentence is constitutional, and whether errors require reversal on appeal.
Double Jeopardy (Fifth Amendment)
The Double Jeopardy Clause protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.
Attachment of Jeopardy
Jeopardy attaches at specific formal procedural milestones:
- Jury Trial: When the jury is empaneled and sworn.
- Bench Trial: When the first witness is sworn.
- Guilty Plea: When the court unconditionally accepts the plea.
- Non-Attachment: Jeopardy does not attach in grand jury proceedings, preliminary hearings, bail determinations, or civil proceedings.
The Blockburger Same-Offense Test
Under Blockburger v. United States (1932), two statutory crimes are not the same offense if each statute requires proof of an additional element that the other does not.
- Lesser-Included Offenses: A lesser included offense contains some, but not all, elements of the greater offense (e.g., simple assault is a lesser-included offense of aggravated assault; auto theft and joyriding). Under Double Jeopardy, conviction or acquittal of a lesser-included offense bars subsequent prosecution for the greater offense, and vice versa (Brown v. Ohio).
- Exception for Delayed Victim Death: If the defendant is convicted of battery, and the victim subsequently dies from those injuries, the prosecution may try the defendant for murder without violating double jeopardy, because the murder was not consummated at the time of the first trial.
Exceptions Permitting Retrial
A retrial is permissible and does not violate double jeopardy following:
- Hung Jury: The jury deadlocks and is unable to reach a unanimous verdict.
- Manifest Necessity Mistrial: The trial is aborted due to manifest necessity (e.g., severe illness of judge/juror, incurable procedural defect).
- Defense-Requested Mistrial: The defendant moves for or consents to a mistrial (unless the prosecutor engaged in intentional, bad-faith misconduct specifically designed to goad the defense into seeking a mistrial, Oregon v. Kennedy).
- Successful Defense Appeal: The defendant successfully overturns a conviction on appeal, unless the appellate court reversed specifically on the ground that the evidence was legally insufficient to sustain a conviction (Burks v. United States [reversal for insufficient evidence acts as an absolute acquittal]).
The Dual Sovereignty Doctrine (Gamble v. United States [2019])
The Double Jeopardy Clause bars successive prosecutions by the same sovereign. Under the Dual Sovereignty Doctrine, separate sovereigns deriving their authority from independent constitutional sources may each prosecute a defendant for the identical conduct under their respective criminal codes:
- Federal Government and a State Government: Distinct sovereigns; both may prosecute the same bank robbery or drug trafficking conspiracy.
- Two Distinct States: Distinct sovereigns; if a kidnapping begins in State A and concludes in State B, both states may prosecute.
- State and Municipality are the SAME Sovereign (Waller v. Florida): Cities, towns, and counties are political subdivisions created by the state, not separate sovereigns. Prosecuting a defendant in municipal court for a misdemeanor bars a subsequent state court prosecution for the same offense.
More on Double Jeopardy
- Collateral estoppel: After masked robbers held up six poker players, a defendant acquitted of robbing one player—where the only disputed issue was whether he was one of the robbers—could not be tried for robbing another (Ashe v. Swenson, 1970). A defendant who consents to separate trials of related charges cannot later use an acquittal in the first trial to bar the second (Currier v. Virginia, 2018).
- Acquittals are final: An acquittal bars retrial even if it rests on an erroneous legal ruling (Evans v. Michigan, 2013). The prosecution may appeal a pretrial dismissal or a judge's post-verdict ruling setting aside a guilty verdict, because a successful appeal would only reinstate the verdict (United States v. Wilson, 1975).
- Multiple punishments in one trial: A legislature may authorize cumulative punishments for the same conduct under two statutes in a single trial (Missouri v. Hunter, 1983).
- Civil sanctions: Double jeopardy applies only to criminal punishment, so civil penalties, civil commitment of sexually violent predators, and civil in rem forfeitures ordinarily do not trigger it (Hudson v. United States, 1997; Kansas v. Hendricks, 1997; United States v. Ursery, 1996).
- Capital sentencing: When a jury at a trial-like capital sentencing proceeding imposes life imprisonment, the state may not seek death on retrial (Bullington v. Missouri, 1981); ordinary noncapital sentencing determinations do not carry this protection (Monge v. California, 1998).
- Sovereigns: Indian tribes are separate sovereigns that may prosecute alongside the federal government (United States v. Wheeler, 1978), but Puerto Rico derives its prosecutorial authority from Congress and is not separate from the United States for double jeopardy purposes (Puerto Rico v. Sanchez Valle, 2016).
Cruel and Unusual Punishment (Eighth Amendment)
| Issue | Rule | Key Cases |
|---|---|---|
| Length of prison sentences | Only grossly disproportionate sentences are invalid, and the Court rarely finds them | Solem v. Helm (1983) (life without parole for a seventh nonviolent felony invalid); Harmelin v. Michigan (1991) (life without parole for large cocaine possession upheld); Ewing v. California (2003) (three-strikes sentence upheld) |
| Death penalty—crimes | Not for nonhomicide crimes against individuals, including rape of an adult or child | Coker v. Georgia (1977); Kennedy v. Louisiana (2008) |
| Death penalty—felony murder accomplices | Only if the accomplice killed, attempted or intended to kill, or was a major participant acting with reckless indifference | Enmund v. Florida (1982); Tison v. Arizona (1987) |
| Death penalty—offenders | Not for offenders under 18 at the time of the crime or intellectually disabled offenders; not for prisoners who cannot rationally understand the reason for execution | Roper v. Simmons (2005); Atkins v. Virginia (2002); Hall v. Florida (2014); Ford v. Wainwright (1986); Madison v. Alabama (2019) |
| Death penalty—procedure | No mandatory death sentences; sentencer must consider mitigating evidence | Woodson v. North Carolina (1976); Lockett v. Ohio (1978) |
| Juvenile life without parole | Barred for nonhomicide offenses; mandatory life without parole barred for all juveniles, but no separate finding of permanent incorrigibility is required | Graham v. Florida (2010); Miller v. Alabama (2012); Jones v. Mississippi (2021) |
| Status offenses | May not punish a status such as narcotics addiction, but may punish conduct such as public intoxication; enforcing generally applicable public-camping laws against homeless people is not cruel and unusual punishment | Robinson v. California (1962); Powell v. Texas (1968); City of Grants Pass v. Johnson (2024) |
| Methods of execution | A prisoner challenging a method must show a substantial risk of severe pain and identify a feasible, readily available alternative | Baze v. Rees (2008); Bucklew v. Precythe (2019) |
| Excessive fines | Incorporated against the states; a forfeiture grossly disproportional to the offense is invalid | Timbs v. Indiana (2019); United States v. Bajakajian (1998) |
| Prison conditions and medical care | Officials violate the Eighth Amendment by deliberate indifference to serious medical needs or substantial risks of serious harm | Estelle v. Gamble (1976); Farmer v. Brennan (1994) |
Appeal and Error
- No constitutional right to appeal: The Constitution does not require states to provide appeals, but if a state does, it must provide indigent defendants trial transcripts (Griffin v. Illinois) and counsel on a first appeal as of right (Douglas v. California).
- Harmless error: A constitutional error does not require reversal if the prosecution proves it harmless beyond a reasonable doubt (Chapman v. California, 1967). Even admission of a coerced confession is subject to harmless-error review (Arizona v. Fulminante, 1991).
- Structural errors: Some errors require automatic reversal because they affect the framework of the trial: complete denial of counsel, a biased judge (Tumey v. Ohio), denial of self-representation, denial of a public trial, a constitutionally deficient reasonable-doubt instruction (Sullivan v. Louisiana, 1993), denial of counsel of choice (United States v. Gonzalez-Lopez, 2006), and counsel's concession of guilt over the defendant's objection (McCoy v. Louisiana, 2018).
- Plain error: An unpreserved error may be corrected if it is clear or obvious, affects substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings (Federal Rule of Criminal Procedure 52(b); United States v. Olano, 1993).
- Vindictiveness: A harsher sentence after a successful appeal and retrial is presumptively vindictive unless based on objective information about the defendant's conduct after the original sentencing (North Carolina v. Pearce, 1969).
- Retroactivity: New constitutional rules of criminal procedure apply to all cases still pending on direct review (Griffith v. Kentucky, 1987) but not to cases on federal collateral review (Edwards v. Vannoy, 2021).
A defendant entered a federally insured bank located in State X, held the tellers at gunpoint, and fled with $100,000 in cash. State X prosecutors charged the defendant with state armed robbery. Following a full jury trial in State X court, the jury acquitted the defendant of all charges. One month later, a federal grand jury indicted the defendant for federal bank robbery based on the exact same robbery of the identical bank. The defendant filed a motion to dismiss the federal indictment, asserting that the federal trial is barred by the Double Jeopardy Clause of the Fifth Amendment. How should the court rule on the motion?
Three masked men robbed six players at a private poker game. The defendant was tried for robbing the first player. The only disputed issue at trial was whether the defendant was one of the robbers, and the jury acquitted him. The state then charged the defendant with robbing the second player at the same game, planning to use the same witnesses and a stronger identification from one of them. The defendant moved to dismiss. How should the court rule?
A 17-year-old was convicted of armed robbery and attempted murder in an incident in which no one was killed, and a judge exercising discretion sentenced him to life imprisonment without the possibility of parole. In a separate case, a 30-year-old man was convicted of raping an eight-year-old child, who suffered serious injuries but survived, and was sentenced to death. Both defendants challenge their sentences under the Eighth Amendment. Which sentences are unconstitutional?
On appeal from a robbery conviction, the defendant raises three claims: (1) the trial court admitted a statement obtained in violation of Miranda, although the other evidence of guilt, including video footage and fingerprints, was overwhelming; (2) the trial court, without any valid reason, refused to let the defendant be represented by the lawyer he had retained and required him to proceed with a public defender, who performed competently; and (3) the prosecutor made an improper remark in closing argument that the judge immediately struck with a curative instruction. Which error requires reversal regardless of its effect on the verdict?