Appellee was tried in Federal District Court on an information
charging him with willfully assisting in the preparation of
fraudulent income tax returns. Following the impaneling of the
jury, the prosecutor called to the stand a taxpayer whom appellee
allegedly had aided in preparing his return. At defense counsel's
suggestion, the judge warned the witness of his constitutional
rights. The witness expressed his willingness to testify, stating
that he had been warned of his rights when first contacted by the
Internal Revenue Service (IRS). The judge refused to permit him to
testify until he had consulted an attorney, indicating that he did
not believe the witness had been warned by the IRS. Although the
prosecutor advised the judge that the remaining witnesses had been
warned of their rights by the IRS upon initial contact, the judge
stated that the warnings were probably inadequate. Thereupon he
discharged the jury and aborted the trial so that the witnesses
could consult with attorneys. The case was set for retrial before
another jury, but on appellee's pretrial motion, the judge
dismissed the information on the ground of former jeopardy. The
Government filed a direct appeal to this Court.
Held: The judgment is affirmed. Pp.
400 U. S.
473-488.
Affirmed.
MR. JUSTICE HARLAN, joined by THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS, and MR. JUSTICE MARSHALL, concluded that:
l. The sustainment of a motion in bar based on a plea of former
jeopardy is appealable by the Government, as long as the motion was
sustained, as here, prior to the impaneling of the jury in the
subsequent proceeding at which the motion was made.
Cf. United
States v. Sisson, 399 U. S. 267. Pp.
400 U. S.
473-478.
2. The Fifth Amendment's Double Jeopardy Clause represents a
constitutional policy of finality for the defendant's benefit in
federal criminal proceedings. Pp.
400 U. S.
479-486.
(a) Although it is recognized that a defendant can be
reprosecuted after a successful appeal, double jeopardy policies
are not
Page 400 U. S. 471
confined to the prevention of prosecutorial or judicial
overreaching. Pp.
400 U. S.
483-484.
(b) The defendant has the option to have his case considered by
the first jury, and where the judge, acting without defendant's
consent, aborts the trial, the defendant has been deprived of his
"valued right to have his trial completed by a particular
tribunal." P.
400 U. S.
484.
(c) In the absence of defendant's motion for a mistrial, the
doctrine of "manifest necessity,"
United
States v. Perez, 9 Wheat. 579,
22 U. S. 580,
commands trial judges not to foreclose the defendant's option until
a scrupulous exercise of judicial discretion warrants the
conclusion that justice would not be served by a continuation of
the trial. Pp.
400 U. S.
485-486.
(d) A judge must temper the decision whether or not to abort the
trial by considering the importance to the defendant of being able
finally to conclude his confrontation with society through the
verdict of a tribunal that he might believe is favorable to him. P.
400 U. S.
486.
3. The trial judge here abused his discretion, and accordingly
appellee's reprosecution would violate the Double Jeopardy Clause.
Pp.
400 U. S.
486-487.
MR. JUSTICE BLACK and MR. JUSTICE BRENNAN concluded that the
Court lacks jurisdiction of the appeal under 18 U.S.C. § 3731
because the trial judge's action amounted to an acquittal, but they
join the Court's judgment in view of the decision of a majority of
the Court to reach the merits. Pp.
400 U. S.
487-488.
STEWART, J., joined by WHITE and BLACKMUN, JJ., agree only that
the Court has jurisdiction of the appeal, as concluded by HARLAN,
J.
See point 1 of syllabus,
supra.
HARLAN, J., announced the judgment of the Court in an opinion in
which BURGER, C.J., and DOUGLAS and MARSHALL, JJ., joined. BURGER,
C.J., filed a concurring opinion,
post, p.
400 U. S. 487.
BLACK and BRENNAN, JJ., filed a statement concurring in the
judgment,
post, p.
400 U. S. 488.
STEWART, J., filed a dissenting opinion in which WHITE and
BLACKMUN, JJ., joined,
post, p.
400 U. S.
488.
Page 400 U. S. 472
MR. JUSTICE HARLAN announced the judgment of the Court in an
opinion joined by THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR.
JUSTICE MARSHALL.
The Government directly appeals the order of the United States
District Court for the District of Utah dismissing, on the ground
of former jeopardy, an information charging the defendant appellee
with willfully assisting in the preparation of fraudulent income
tax returns, in violation of 26 U.S.C. § 7206(2).
Appellee was originally charged in February 1968 with 25 counts
of violating § 7206(2). He was brought to trial before Chief Judge
Ritter on August 27, 1968. After the jury was chosen and sworn, 14
of the counts were dismissed on the Government's motion. The trial
then commenced, the Government calling as its first witness an
Internal Revenue Service agent in order to put in evidence the
remaining 11 allegedly fraudulent income tax returns the defendant
was charged with helping to prepare. At the trial judge's
suggestion, these exhibits were stipulated to and introduced in
evidence without objection. The Government's five remaining
witnesses were taxpayers whom the defendant allegedly had aided in
preparation of these returns.
After the first of these witnesses was called, but prior to the
commencement of direct examination, defense counsel suggested that
these witnesses be warned of their constitutional rights. The trial
court agreed, and proceeded, in careful detail, to spell out the
witness' right
Page 400 U. S. 473
not to say anything that might be used in a subsequent criminal
prosecution against him and his right, in the event of such a
prosecution, to be represented by an attorney. The first witness
expressed a willingness to testify, and stated that he had been
warned of his constitutional rights when the Internal Revenue
Service first contacted him. The trial judge indicated, however,
that he did not believe the witness had been given any warning at
the time he was first contacted by the IRS, and refused to permit
him to testify until he had consulted an attorney.
The trial judge then asked the prosecuting attorney if his
remaining four witnesses were similarly situated. The prosecutor
responded that they had been warned of their rights by the IRS upon
initial contact. The judge, expressing the view that any warnings
that might have been given were probably inadequate, proceeded to
discharge the jury; he then called all the taxpayers into court,
and informed them of their constitutional rights and of the
considerable dangers of unwittingly making damaging admissions in
these factual circumstances. Finally, he aborted the trial so the
witnesses could consult with attorneys.
The case was set for retrial before another jury, but on
pretrial motion by the defendant, Judge Ritter dismissed the
information on the ground of former jeopardy. The Government filed
a direct appeal to this Court, and we noted probable jurisdiction.
396 U.S. 810 (1969). The case was argued at the 1969 Term, and
thereafter set for reargument at the present Term. 397 U.S. 1060
(1970).
I
Appellee contends, at the threshold, that our decision in
United States v. Sisson, 399 U. S. 267,
399 U. S.
302-307 (1970), which followed our noting of probable
jurisdiction in this case, forecloses appeal by the Government
under
Page 400 U. S. 474
the motion-in-bar provisions of 18 U.S.C. § 3731 prior to its
recent amendment. [
Footnote 1]
The question was fully briefed and argued on reargument.
The statute provided, in relevant part, for an appeal by the
Government direct to the Supreme Court "[f]rom the decision or
judgment sustaining a motion in bar, when the defendant has not
been put in jeopardy." Appellee concedes, as indeed he must under
the prior rulings of this Court, that his plea of former jeopardy
constituted a "motion in bar" within the meaning of the statute.
[
Footnote 2] The issue is
whether appellee had been "put in jeopardy" by virtue of the
impaneling of the jury in the first proceeding before the
declaration of mistrial. In
Sisson, supra, the opinion of
the Court [
Footnote 3] -- in
discussing the applicability of the motion-in-bar provision to the
Government's direct appeal of the trial judge's actions there --
concluded,
inter alia, that the "put in jeopardy" language
applied whenever the jury had
Page 400 U. S. 475
been impaneled, even if the defendant might constitutionally
have been retried under the double jeopardy provisions of the Fifth
Amendment. 399 U.S. at
399 U. S. 302-307.
[
Footnote 4]
Here, the jury in the first proceeding had been impaneled before
the mistrial ruling, but appellee's motion to dismiss on grounds of
former jeopardy was made prior to the impaneling of the second
jury. The Government contends that the impaneling of the jury must
be understood to apply to the jury in the proceeding to which the
plea of former jeopardy is offered as a bar, rather than the jury
whose impaneling was, in the first instance, essential to sustain
the plea on the merits. Appellee contends that the construction put
on the statute in the
Sisson opinion requires the
conclusion that the Government may not appeal when a jury in the
prior proceeding for the offense in question has been
impaneled.
We think the Government has the better of the argument.
[
Footnote 5] The Court's
opinion in
Sisson dealt with the problem presented by the
trial judge's order purporting to arrest the entry of judgment on
the guilty verdict
Page 400 U. S. 476
returned by the very jury whose impaneling was claimed to
constitute "jeopardy" within the meaning of the motion-in-bar
provision. The conclusion that jeopardy had attached by the
impaneling of the jury in that proceeding rested on the view that
the Congress was concerned, in granting the Government appeal
rights in certain classes of cases, to avoid subjecting the
defendant to a second trial where the first trial had terminated in
a manner favorable to the defendant either because of a jury
verdict or because of judicial action.
See Sisson, supra,
at
397 U. S.
293-300. The "compromise origins" of the Criminal
Appeals Act,
see id. at
397 U. S. 307,
reflected this concern, and that concern is an important
consideration supporting the canon of strict construction
traditionally applied to this statute.
See id. at
397 U. S.
296-300;
Will v. United States, 389 U. S.
90,
389 U. S. 96-98
(1967).
In the mistrial situation, the judicial ruling that is
chronologically analogous to the
Sisson facts would be the
declaration of a mistrial after the first jury has been impaneled.
Obviously, the Government could not have appealed Judge Ritter's
original declaration of mistrial. Since a mistrial ruling
explicitly contemplates reprosecution of the defendant, the
nonappealability of this judicial action fits with congressional
action in excluding pleas in abatement from the class of cases
warranting appellate review. The nonappealable status of rulings of
this sort is fully explainable in terms of a policy disfavoring
appeals from interlocutory rulings.
See the discussion in
Will v. United States, supra, at
389 U. S.
96-98.
But it does not follow from the nonappealability of rulings
which are essentially interlocutory insofar as they expressly
contemplate resumption of the prosecution that Congress intended to
foreclose governmental appeal from the sustaining of a later motion
in bar on the trial judge's conclusion that constitutional
double
Page 400 U. S. 477
jeopardy policies require that the earlier mistrial ruling now
be accorded the effect of barring reprosecution. Indeed, when we
recall that pleas of former jeopardy were the paradigm
illustrations of motions in bar at common law,
see
n 2,
supra, it seems
much more likely that the congressional decision to allow
governmental appeals from the judge's decision sustaining a motion
in bar was intended to permit review of later judicial action
possibly premised on erroneous theories concerning constitutional
effects attaching to the earlier interlocutory ruling.
Consistently with the Court's opinion in
Sisson, the
sustaining of a motion in bar based on a plea of former jeopardy
would be appealable as long as the motion in bar was sustained
prior to the impaneling of the jury in the subsequent proceeding.
[
Footnote 6] Since Judge Ritter
in
Page 400 U. S. 478
this case dismissed the information on appellee's plea of former
jeopardy prior to the impaneling of the second jury, we conclude
that the decision is directly appealable by the Government as a
motion in bar before the defendant was "put in jeopardy" within the
meaning of the applicable statute. Hence, we proceed to the merits
of appellee's claim that reprosecution after the declaration of
mistrial in the earlier proceeding would violate his Fifth
Amendment rights. [
Footnote
7]
Page 400 U. S. 479
II
The Fifth Amendment's prohibition against placing a defendant
"twice in jeopardy" represents a constitutional policy of finality
for the defendant's benefit in federal criminal proceedings.
[
Footnote 8] A power in
government to subject the individual to repeated prosecutions for
the same offense would cut deeply into the framework of procedural
protections which the Constitution establishes for the conduct of a
criminal trial. And society's awareness of the heavy personal
strain which a criminal trial represents for the individual
defendant is manifested in the willingness to limit the Government
to a single criminal proceeding to vindicate its very vital
interest in enforcement of criminal laws. Both of these
considerations are expressed in
Green v. United States,
355 U. S. 184,
355 U. S.
187-188 (1957), where the Court noted that the policy
underlying this provision
"is that the State with all its resources and power should not
be allowed to make repeated attempts to convict an individual for
an alleged offense, thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live in a continuing state
of anxiety and insecurity, as well as enhancing the possibility
that, even though innocent, he may be found guilty."
These considerations have led this Court to conclude that a
defendant is placed in jeopardy in a criminal proceeding once the
defendant is put to trial before the trier of the facts, whether
the trier be a jury or a judge.
See Green v. United States,
supra, at
355 U. S. 188;
Wade v. Hunter, 336 U. S. 684,
336 U. S. 688
(1949).
But it is also true that a criminal trial is, even in the best
of circumstances, a complicated affair to manage. The proceedings
are dependent in the first instance on
Page 400 U. S. 480
the most elementary sort of considerations,
e.g., the
health of the various witnesses, parties, attorneys, jurors, etc.,
all of whom must be prepared to arrive at the courthouse at set
times. And when one adds the scheduling problems arising from case
overloads, and the Sixth Amendment's requirement that the single
trial to which the double jeopardy provision restricts the
Government be conducted speedily, it becomes readily apparent that
a mechanical rule prohibiting retrial whenever circumstances compel
the discharge of a jury without the defendant's consent would be
too high a price to pay for the added assurance of personal
security and freedom from governmental harassment which such a
mechanical rule would provide. As the Court noted in
Wade v.
Hunter, supra, at
336 U. S.
689,
"a defendant's valued right to have his trial completed by a
particular tribunal must in some circumstances be subordinated to
the public's interest in fair trials designed to end in just
judgments."
Thus, the conclusion that "jeopardy attaches" when the trial
commences expresses a judgment that the constitutional policies
underpinning the Fifth Amendment's guarantee are implicated at that
point in the proceedings. The question remains, however, in what
circumstances retrial is to be precluded when the initial
proceedings are aborted prior to verdict without the defendant's
consent.
In dealing with that question, this Court has, for the most
part, explicitly declined the invitation of litigants to formulate
rules based on categories of circumstances which will permit or
preclude retrial. Thus, in
United States v.
Perez, 9 Wheat. 579 (1824), this Court held that a
defendant in a capital case might be retried after the trial judge
had, without the defendant's consent, discharged a jury that
reported itself unable to agree. Mr. Justice Story's opinion for
the Court in
Page 400 U. S. 481
Perez expressed the following thoughts on the problem
of reprosecution after a mistrial had been declared without the
consent of the defendant:
"We think, that, in all cases of this nature, the law has
invested Courts of justice with the authority to discharge a jury
from giving any verdict whenever, in their opinion, taking all the
circumstances into consideration, there is a manifest necessity for
the act, or the ends of public justice would otherwise be defeated.
They are to exercise a sound discretion on the subject, and it is
impossible to define all the circumstances, which would render it
proper to interfere. To be sure, the power ought to be used with
the greatest caution, under urgent circumstances, and for very
plain and obvious causes, and, in capital cases especially, Courts
should be extremely careful how they interfere with any of the
chances of life in favour of the prisoner. But, after all, they
have the right to order the discharge, and the security which the
public have for the faithful, sound, and conscientious exercise of
this discretion rests, in this, as in other cases, upon the
responsibility of the judges under their oaths of office."
Id. at
22 U. S.
580.
The
Perez case has since been applied by this Court as
a standard of appellate review for testing the trial judge's
exercise of his discretion in declaring a mistrial without the
defendant's consent.
E.g., Simmons v. United States,
142 U. S. 148
(1891) (reprosecution not barred where mistrial declared because
letter published in newspaper rendered juror's impartiality
doubtful);
Logan v. United States, 144 U.
S. 263 (1892) (reprosecution not barred where jury
discharged after 40 hours of deliberation for inability to reach a
verdict);
Thompson v. United States, 155 U.
S. 271 (1894) (reprosecution
Page 400 U. S. 482
not barred where jury discharged because one juror had served on
grand jury indicting defendant);
Wade v. Hunter,
336 U. S. 684
(1949) (retrial not barred where military court-martial discharged
due to tactical necessity in the field). [
Footnote 9]
But a more recent case --
Gori v. United States,
367 U. S. 364
(1961) -- while adhering in the main to the
Perez theme of
a "manifest necessity" standard of appellate review -- does suggest
the possibility of a variation on that theme according to a
determination by the appellate court as to which party to the case
was the beneficiary of the mistrial ruling. In
Gori, the
Court was called upon to review the action of a trial judge in
discharging the jury when it appeared to the judge that the
prosecution's questioning of a witness might lead to the
introduction of evidence of prior crimes. We upheld reprosecution
after the mistrial in an opinion which, while applying the
principle of
Perez, appears to tie the judgment that there
was no abuse of discretion in these circumstances to the fact that
the judge was acting "in the sole interest of the defendant." 367
U.S. at
367 U. S. 369;
see also the dissenting opinion of MR. JUSTICE DOUGLAS,
id. at
367 U. S. 370.
[
Footnote 10]
In the instant case, the Government, relying principally on
Gori, contends that, even if we conclude the trial judge
here abused his discretion, reprosecution should be permitted
because the judge's ruling "benefited" the defendant, and also
clearly was not compelled by bad faith prosecutorial conduct aimed
at triggering a mistrial in order to get another day in court. If
the judgment as to who was "benefited" by the mistrial ruling turns
on the appellate court's conclusion concerning
Page 400 U. S. 483
which party the trial judge was, in point of personal
motivation, trying to protect from prejudice, it seems reasonably
clear from the trial record here that the judge's insistence on
stopping the trial until the witnesses were properly warned was
motivated by the desire to protect the witnesses, rather than the
defendant. But the Government appears to view the question of
"benefit" as turning on an appellate court's
post hoc
assessment as to which party would, in fact, have been aided in the
hypothetical event that the witnesses had been called to the stand
after consulting with their own attorneys on the course of conduct
that would best serve to insulate them personally from criminal and
civil liability for the fraudulent tax returns. That conception of
benefit, however, involves nothing more than an exercise in pure
speculation. In sum, we are unable to conclude on this record that
this is a case of a mistrial made "in the sole interest of the
defendant."
See Gori v. United States, supra.
Further, we think that a limitation on the "abuse of discretion"
principle based on an appellate court's assessment of which side
benefited from the mistrial ruling does not adequately satisfy the
policies underpinning the double jeopardy provision. Reprosecution
after a mistrial has unnecessarily been declared by the trial court
obviously subjects the defendant to the same personal strain and
insecurity regardless of the motivation underlying the trial
judge's action. The Government contends, however, that the policies
evinced by the double jeopardy provision do not reach this sort of
injury; rather, the unnecessarily inflicted second trial must, in
the Government's view, appear to be the result of a mistrial
declaration which "unfairly aids the prosecution or harasses the
defense." Govt. Brief 8.
Certainly it is clear beyond question that the Double Jeopardy
Clause does not guarantee a defendant that the Government will be
prepared, in all circumstances, to
Page 400 U. S. 484
vindicate the social interest in law enforcement through the
vehicle of a single proceeding for a given offense. Thus, for
example, reprosecution for the same offense is permitted where the
defendant wins a reversal on appeal of a conviction.
United
States v. Ball, 163 U. S. 662
(1896);
see Green v. United States, 355 U.
S. 184,
355 U. S. 189
(1957). The determination to allow reprosecution in these
circumstances reflects the judgment that the defendant's double
jeopardy interests, however defined, do not go so far as to compel
society to so mobilize its decisionmaking resources that it will be
prepared to assure the defendant a single proceeding free from
harmful governmental or judicial error. But it is also clear that
recognition that the defendant can be reprosecuted for the same
offense after successful appeal does not compel the conclusion that
double jeopardy policies are confined to prevention of
prosecutorial or judicial overreaching. For the crucial difference
between reprosecution after appeal by the defendant and
reprosecution after a
sua sponte judicial mistrial
declaration is that, in the first situation, the defendant has not
been deprived of his option to go to the first jury and, perhaps,
end the dispute then and there with an acquittal. On the other
hand, where the judge, acting without the defendant's consent,
aborts the proceeding, the defendant has been deprived of his
"valued right to have his trial completed by a particular
tribunal." [
Footnote 11]
See Wade v. Hunter, 336 U.S. at
336 U. S.
689.
Page 400 U. S. 485
If that right to go to a particular tribunal is valued, it is
because, independent of the threat of bad faith conduct by judge or
prosecutor, the defendant has a significant interest in the
decision whether or not to take the case from the jury when
circumstances occur which might be thought to warrant a declaration
of mistrial. Thus, where circumstances develop not attributable to
prosecutorial or judicial overreaching, a motion by the defendant
for mistrial is ordinarily assumed to remove any barrier to
reprosecution, even if the defendant's motion is necessitated by
prosecutorial or judicial error. [
Footnote 12] In the absence of such a motion, the
Perez doctrine of manifest necessity stands as a command
to trial judges not to foreclose the defendant's option until a
scrupulous exercise of judicial discretion leads to the conclusion
that the ends of public justice would not be served by a
continuation of the proceedings.
See United States v.
Perez, 9 Wheat. at
22 U. S.
580.
The conscious refusal of this Court to channel the exercise of
that discretion according to rules based on categories of
circumstances,
see Wade v. Hunter, 336 U.S. at
336 U. S. 691,
reflects the elusive nature of the problem presented by judicial
action foreclosing the defendant from going to his jury. But that
discretion must still be exercised; unquestionably an important
Page 400 U. S. 486
factor to be considered is the need to hold litigants on both
sides to standards of responsible professional conduct in the clash
of an adversary criminal process. Yet we cannot evolve rules based
on the source of the particular problem giving rise to a question
whether a mistrial should or should not be declared, because, even
in circumstances where the problem reflects error on the part of
one counsel or the other, the trial judge must still take care to
assure himself that the situation warrants action on his part
foreclosing the defendant from a potentially favorable judgment by
the tribunal.
In sum, counsel for both sides perform in an imperfect world; in
this area, bright-line rules based on either the source of the
problem or the intended beneficiary of the ruling would only
disserve the vital competing interests of the Government and the
defendant. The trial judge must recognize that lack of preparedness
by the Government to continue the trial directly implicates
policies underpinning both the double jeopardy provision and the
speedy trial guarantee.
Cf. Downum v. United States,
372 U. S. 734
(1963). Alternatively, the judge must bear in mind the potential
risks of abuse by the defendant of society's unwillingness to
unnecessarily subject him to repeated prosecutions. Yet, in the
final analysis, the judge must always temper the decision whether
or not to abort the trial by considering the importance to the
defendant of being able, once and for all, to conclude his
confrontation with society through the verdict of a tribunal he
might believe to be favorably disposed to his fate.
III
Applying these considerations to the record in this case, we
must conclude that the trial judge here abused his discretion in
discharging the jury. Despite assurances by both the first witness
and the prosecuting attorney
Page 400 U. S. 487
that the five taxpayers involved in the litigation had all been
warned of their constitutional rights, the judge refused to permit
them to testify, first expressing his disbelief that they were
warned at all, and then expressing his views that any warnings that
might have been given would be inadequate. App. 412. In probing the
assumed inadequacy of the warnings that might have been given, the
prosecutor was asked if he really intended to try a case for
willfully aiding in the preparation of fraudulent returns on a
theory that would not incriminate the taxpayers. When the
prosecutor started to answer that he intended to do just that, the
judge cut him off in midstream and immediately discharged the jury.
App. 443. It is apparent from the record that no consideration was
given to the possibility of a trial continuance; indeed, the trial
judge acted so abruptly in discharging the jury that, had the
prosecutor been disposed to suggest a continuance, or the defendant
to object to the discharge of the jury, there would have been no
opportunity to do so. When one examines the circumstances
surrounding the discharge of this jury, it seems abundantly
apparent that the trial judge made no effort to exercise a sound
discretion to assure that, taking all the circumstances into
account, there was a manifest necessity for the
sua sponte
declaration of this mistrial.
United States v. Perez, 9
Wheat. at
22 U. S. 580.
Therefore, we must conclude that, in the circumstances of this
case, appellee's reprosecution would violate the double jeopardy
provision of the Fifth Amendment.
Affirmed.
[
Footnote 1]
These provisions of the Criminal Appeals Act have recently been
amended.
See n 6,
infra. However, the new amendment does not apply to cases
begun in the District Court before the effective date of enactment.
Ibid. Our jurisdiction over the present appeal is
therefore controlled by the terms of the Criminal Appeals Act as
codified at 18 U.S.C. § 3731.
[
Footnote 2]
The common law equivalent of the motion in bar was used to raise
the defenses of prior acquittal, prior conviction, and pardon.
See United States v. Murdock, 284 U.
S. 141,
284 U. S. 151
(1931). Whether the motion-in-bar provision is construed broadly to
reach any plea having the effect of preventing further
prosecutions,
see United States v. Mersky, 361 U.
S. 431,
361 U. S.
441-143 (1960) (BRENNAN, J., concurring), or narrowly to
reach only pleas in the nature of confession and avoidance,
see
id. at
361 U. S.
455-458 (STEWART, J., dissenting), appellee's plea of
former jeopardy based on the prior declaration of mistrial would be
included.
Cf. United States v. Blue, 384 U.
S. 251,
384 U. S. 254
(1966).
See generally United States v. Sisson,
399 U. S. 267,
399 U. S. 300
n. 53 (1970).
[
Footnote 3]
The portion of the Court's opinion in
Sisson under
discussion here was joined in by only four members of the
Court.
[
Footnote 4]
MR. JUSTICE WHITE's dissenting opinion contended that the
jeopardy language applies to preclude governmental appeal only
where the defendant's reprosecution would be barred by the
Constitution.
[
Footnote 5]
The Government relies in part on
United States v.
Tateo, 377 U. S. 463
(1964), and
United States v. Oppenheimer, 242 U. S.
85 (1916), as sustaining jurisdiction under 18 U.S.C. §
3731 to review the trial courts action in granting a pretrial
motion to dismiss on double jeopardy grounds after the prior
proceeding ended in a mistrial. In
Tateo, however,
jurisdiction was neither raised by the parties nor considered by
the Court; therefore, it is of little significance on the
jurisdiction point. In
Oppenheimer, the motion in bar in
the second proceeding rested on an earlier pretrial motion based on
the statute of limitations; the theory of the second plea was
res judicata.
[
Footnote 6]
Appellee points out that Rule 12(b)(1) of the Federal Rules of
Criminal Procedure permits the defendant to raise the defense of
former jeopardy on motion before or after the impaneling of the
jury.
See Notes of the Advisory Committee, 8 J. Moore,
Federal Practice � 12.01[2] (2d ed.1970). Thus, it is suggested
that the defendant may deprive the Government of its appeal simply
by delaying his motion to dismiss until the jury has been
impaneled. This problem, of course, is inherent in the structure of
the Criminal Appeals Act prior to amendment; for example, the
defendant under Rule 12(b)(1) may also delay his statute of
limitations plea until after the impaneling of the jury,
see
ibid., thereby depriving the Government of its § 3731 appeal
to this Court. Soon after the passage of the original Act, the
Attorney General recognized the problem and proposed that the Act
be amended to require counsel for the defendant to raise and argue
such questions before jeopardy attaches.
See Sisson,
supra, at
397 U. S.
305-306. A recently enacted amendment to the Criminal
Appeals Act undertakes to deal with the problem by allowing the
Government to appeal
"to a court of appeals from a decision, judgment, or order of a
district court dismissing an indictment or information as to any
one or more counts, except that no appeal shall lie where the
double jeopardy clause of the United States Constitution prohibits
further prosecution."
Omnibus Crime Control Act of 1970, § 14(a)(1), 84 Stat. 1890
(January 2, 1971). However, the amendment is not applicable to any
criminal case begun in any district court before the effective date
of the amendment.
Id. § 14(b).
See also S.Rep.
No. 91-129, pp.6-7.
[
Footnote 7]
It is clear from the record in this case that Judge Ritter's
action cannot, as two members of the Court suggest, be classified
as an "acquittal" for purposes of this Court's jurisdiction over
the appeal under 18 U.S.C. § 3731. First, Judge Ritter's action at
the original trial clearly contemplated reprosecution of the
defendant after the witnesses had consulted with attorneys.
See App. 46 and MR. JUSTICE STEWART's dissent,
post at
400 U. S.
488-489, n. 1. Judge Ritter's subsequent action
dismissing the information was simply put on the ground of
defendant's plea of former jeopardy, without further explanation.
App. 60. But the parties below put the question of former jeopardy
to Judge Ritter exclusively in terms of the Court's line of cases
concerning reprosecutability after mistrial declarations without
the defendant's consent.
See App. 55-59, which contain the
entire post-mistrial proceedings before Judge Ritter.
Of course, as we noted in
Sisson, supra, at
397 U. S. 290,
the trial judge's characterization of his own action cannot control
the classification of the action for purposes of our appellate
jurisdiction. But
Sisson goes on to articulate the
criterion of an "acquittal" for purposes of assessing our
jurisdiction to review: the trial judge's disposition is an
"acquittal" if it is "a legal determination on the basis of facts
adduced at the trial relating to the general issue of the case. . .
."
Sisson, supra, at
397 U. S. 290
n.19. The record in this case is utterly devoid of any indication
of reliance by Judge Ritter on facts relating to the general issue
of the case, thereby surely distinguishing this case from
Sisson, and, one would think, under the very reasoning of
Sisson, compelling the conclusion that, whatever else
Judge Ritter may have done, he did not "acquit" the defendant in
the relevant sense.
[
Footnote 8]
Two Terms ago, the double jeopardy provision of the Fifth
Amendment was made directly applicable to the States.
See
Benton v. Maryland, 395 U. S. 784
(1969).
[
Footnote 9]
See also Annotation: Double Jeopardy -- Mistrial, 6 L.
Ed. 2d 1509; J. Sigler, Double Jeopardy 397 (1969).
[
Footnote 10]
And see Annotation,
supra, n 9, at 1511; Sigler,
supra, n 9, at 44-45.
[
Footnote 11]
We think that nothing said in
United States v. Tateo,
377 U. S. 463,
377 U. S. 467
(1964), can properly be taken as indicating a contrary view. For
there, even though defendant's guilty plea which aborted the trial
was subsequently held to have been coerced by judicial action, the
defendant nonetheless was not foreclosed of his option to go to the
jury if he chose to do so, and thereafter rely on post-conviction
proceedings to redress the wrong done to him by the judge. In other
words, the question of "voluntariness" for purposes of assessing
the validity of a plea of guilty -- whether offered before or at
trial -- must be distinguished from the question of "voluntariness"
for purposes of assessing reprosecutability under the Double
Jeopardy Clause.
[
Footnote 12]
Conversely, where a defendant's mistrial motion is necessitated
by judicial or prosecutorial impropriety designed to avoid an
acquittal, reprosecution might well be barred.
Cf. United
States v. Tateo, supra, at
377 U. S. 468
n. 3; n. 11,
supra.
MR. CHIEF JUSTICE BURGER, concurring.
I join in the plurality opinion and in the judgment of the Court
not without some reluctance, however, since the case represents a
plain frustration of the right to
Page 400 U. S. 488
have this case tried, attributable solely to the conduct of the
trial judge. If the accused had brought about the erroneous
mistrial ruling, we would have a different case, but this record
shows nothing to take appellee's claims outside the classic mold of
being twice placed in jeopardy for the same offense.
MR. JUSTICE BLACK and MR. JUSTICE BRENNAN believe that the Court
lacks jurisdiction over this appeal under 18 U.S.C. § 3731 because
the action of the trial judge amounted to an acquittal of appellee,
and therefore there was no discretion left to the trial judge to
put appellee again in jeopardy. However, in view of a decision by a
majority of the Court to reach the merits, they join the judgment
of the Court.
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE and MR. JUSTICE
BLACKMUN join, dissenting.
The plurality opinion today says that, whenever a trial judge in
a criminal case has "abused his discretion" in declaring a mistrial
on his own motion, the constitutional guarantee against double
jeopardy categorically operates to forestall a trial of the case on
the merits. I cannot agree.
The District Judge's decision to declare a mistrial in this case
was based on his belief that the prosecution witnesses, who were to
testify that they had submitted false income tax returns prepared
by the defendant, had not been adequately warned that they might
themselves incur criminal liability by their testimony. The judge
apparently intended simply to postpone the case so that the
witnesses could be fully apprised of their constitutional rights,
[
Footnote 2/1] and a second trial
was scheduled before
Page 400 U. S. 489
a new jury. However, before the new trial date, defendant filed
a motion to dismiss the information on the ground of former
jeopardy, and the judge granted the motion. The Government appealed
directly to this Court. [
Footnote
2/2]
It is, of course, common ground that there are many
circumstances under which a trial judge may discharge a jury and
order a new trial without encountering any double jeopardy
problems. One example is where the judge acts at the instance of
the defendant himself.
See United States v. Tateo,
377 U. S. 463,
377 U. S. 467.
Another is where the jury cannot reach a verdict, and there, the
trial judge may proceed on his own initiative, even over the active
objection of the defendant, to declare a mistrial.
United
States v. Perez, 9 Wheat. 579.
Cf. Simmons v.
United States, 142 U. S. 148;
Wade v. Hunter, 336 U. S. 684. On
the other hand, there are situations where the circumstances under
which the mistrial was declared may be such as to bar a future
prosecution. One example is where a
"judge exercises his authority to help the prosecution, at a
trial in which its case is going badly, by affording it another,
more favorable opportunity to convict the accused."
Gori v. United States, 367 U.
S. 364,
367 U. S. 369.
I should suppose that whether misconduct of this kind occurs at the
instance of the prosecutor or on the trial judge's sole initiative,
there is no question but that the guarantee against double jeopardy
would make another trial impermissible.
The present case does not fall neatly into any of these
conventional categories. There was no request for a mistrial from
defense counsel (although his suggestion that the witnesses be
warned of their constitutional rights
Page 400 U. S. 490
may have triggered the course of events that followed), and the
case certainly cannot be analogized to that of a hung jury.
Conversely, the mistrial was not requested by the prosecutor, and
there is not the slightest indication that he desired it to occur.
Nor is there any suggestion that this was a situation involving
"harassment," or an attempt by judge or prosecutor to enhance the
possibility of conviction in a second trial.
The plurality opinion purports to resolve the matter by adopting
a rule of "abuse of discretion" by the trial judge. This standard
is said to derive from the statement of the Court in the leading
case of
United States v. Perez, supra, at
22 U. S.
580:
"We think, that, in all cases of this nature, the law has
invested Courts of justice with the authority to discharge a jury
from giving any verdict, whenever, in their opinion, taking all the
circumstances into consideration, there is a manifest necessity for
the act, or the ends of public justice would otherwise be defeated.
They are to exercise a sound discretion on the subject, and it is
impossible to define all the circumstances which would render it
proper to interfere. To be sure, the power ought to be used with
the greatest caution, under urgent circumstances, and for very
plain and obvious causes . . ."
"But, after all, they have the right to order the discharge, and
the security which the public have for the faithful, sound, and
conscientious exercise of this discretion, rests in this, as in
other cases, upon the responsibility of the Judges, under their
oaths of office."
The plurality opinion appears to construe this passage to mean
that an appellate court, in determining the applicability of the
double jeopardy guarantee, must measure the trial judge's action in
declaring the mistrial against a
Page 400 U. S. 491
standard of good trial practice. If the trial judge has
conspicuously failed to meet such a standard, then, regardless of
the nature or the consequences of the error, the Constitution bars
another trial. In my view, this reasoning is both overbroad and
flatly inconsistent with this Court's decision in
Gori v.
United States, supra.
In that case, the trial judge had discharged the jury during the
first day of trial, taking such action apparently to forestall
prejudicial error after inferring that the prosecuting attorney's
line of questioning presaged inquiry calculated to inform the jury
of other crimes by the accused. The Court of Appeals held that the
declaration of a mistrial under these circumstances did not prevent
a new trial on the merits:
"Here, the defendant was in no way harmed by the brief trial
which, indeed, revealed to him the prosecution's entire case. He
was thus in a position to start anew with a clean slate, with all
possibility of prejudice eliminated and with foreknowledge of the
case against him. The situation was quite unlike the more
troublesome problems found in various of the cases, as where the
prosecution desires to strengthen his case on a new start or
otherwise provokes the declaration of mistrial, or the court has
acted to the prejudice of the accused, or the accused has actually
been subject to two trials for essentially the same offense. On the
other hand, for the defendant to receive absolution for his crime,
later proven quite completely, because the judge acted too hastily
in his interest would be an injustice to the public in the
particular case and a disastrous precedent for the future."
282 F.2d 43, 48 (CA2 1960). This Court declined to pass on the
Court of Appeals' judgment that there had been no abuse of
discretion, noted that the case involved neither harassment nor
an
Page 400 U. S. 492
attempt to augment the chances of conviction, and concluded:
"Suffice that we are unwilling, where it clearly appears that a
mistrial has been granted in the sole interest of the defendant, to
hold that its necessary consequence is to bar all retrial. It would
hark back to the formalistic artificialities of seventeenth century
criminal procedure so to confine our federal trial courts by
compelling them to navigate a narrow compass between Scylla and
Charybdis. We would not thus make them unduly hesitant
conscientiously to exercise their most sensitive judgment --
according to their own lights in the immediate exigencies of trial
-- for the more effective protection of the criminal accused."
367 U.S. at
367 U. S.
369-370.
Gori established, I think correctly, that the simple
phrase "abuse of discretion" is not enough, in itself, to resolve
double jeopardy questions in cases of this kind. Whether or not
there has been an "abuse of discretion" sufficient to bar retrial
cannot be determined without reference to the purpose and effect of
the mistrial ruling. The real question is whether there has been an
"abuse" of the trial process resulting in prejudice to the accused,
by way of harassment or the like, such as to outweigh society's
interest in the punishment of crime. It is in this context, rather
than simply in terms of good trial practice, that the trial judge's
"abuse of discretion" must be assessed in deciding the question of
double jeopardy. [
Footnote 2/3]
Page 400 U. S. 493
Applying these considerations to the record in this case, it
seems clear to me that a trial on the merits would not violate the
constitutional guarantee. It is quite true, as the plurality
opinion insists, that the mistrial was declared for the benefit of
the witnesses rather than in the "sole interest of the defendant."
But except for the inconvenience of delay always caused by a
mistrial, the judge's ruling could not possibly have injured the
defendant. Had the witnesses heeded the trial judge's advice, it is
at least possible that the defendant's position might have been
very substantially improved by their refusal to testify upon the
grounds of the guarantee against compulsory self-incrimination. The
line of questioning that resulted in the mistrial may have been
initiated by defense counsel with just such a result in mind. There
is, of course, no showing of an intent on the part of either the
prosecutor or the judge to harass the defendant or to enhance the
chances of conviction in a second trial. And as in
Gori,
the defense was given a complete preview of the Government's case.
Even assuming that the trial judge's action was plainly improper by
any standard of good trial practice, the circumstances under which
the mistrial was declared did not involve "abuse" of a kind to
invoke the constitutional guarantee against double jeopardy.
I respectfully dissent from the judgment of the Court.
[
Footnote 2/1]
The trial judge stated:
"So this case is vacated, setting is vacated this afternoon, and
it will be calendared again; and, before it is calendared again, I
am going to have these witnesses in and talk to them again before I
will permit them to testify."
App. 46.
[
Footnote 2/2]
I agree that the Court has jurisdiction of this appeal, for the
reasons set out in
400 U. S.
[
Footnote 2/3]
Downum v. United States, 372 U.
S. 734, is not to the contrary. As the plurality opinion
today points out, that case recognized that
"lack of preparedness by the Government to continue the trial
directly implicates policies underpinning both the double jeopardy
provision and the speedy trial guarantee,"
ante at
372 U. S. 486.
Failure of the prosecution to go forward with its case in an
expeditious and orderly manner is quite different from even a
serious error in trial procedure by the presiding judge. It is, of
course, well settled that, when a jury verdict is reversed on
appeal because of an error by the trial judge, a new trial is
permitted,
e.g., Forman v. United States, 361 U.
S. 416;
Bryan v. United States, 338 U.
S. 552. And in
United States v. Tateo,
377 U. S. 463, the
Court held retrial not barred by the Double Jeopardy Clause where
the first trial was terminated on a plea of guilty coerced by
clearly improper statements by the trial judge during the
proceedings.