Delaware Trial Handbook § 4:1. DOUBLE JEOPARDY
The phrase “double jeopardy” refers to the constitutional protection against an individual being placed at risk of life or liberty twice for the same offense.1 This encompasses three separate protections. First, it protects against a second prosecution for the same offense after acquittal. Second, it protects against a second prosecution for the same offense after conviction. Third, it protects against multiple punishments for the same offense.2 At the heart of the double jeopardy rule is the concern for protecting individuals from harassment by the government through multiple attempts to bring the “same” charge against a defendant for conduct arising out of the same factual situation.3
In determining whether a subsequent prosecution is barred, one inquiry is to determine whether the subsequent prosecution is for the “same” offense. The general rule is that if the prior and subsequent offenses each require proof of an additional fact that the other does not, then the offenses are not the “same” for double jeopardy purposes.4 Thus, a defendant may not be convicted of a lesser included offense as well as the greater offense.4.1
When the subsequent prosecution is for a violation of the same statutory provisions based on the same facts as the former prosecution, the subsequent prosecution is for the “same” offense as the former prosecution.4.2 However, prosecution for several separate acts that violate the same statute, even if committed closely together in time, is not a violation of double jeopardy.5 There is no bright-line rule for determining how much time must elapse or how much spatial separation must exist between two criminal acts for those acts to constitute separate offenses. The critical inquiry is whether the temporal and spatial separation between the acts supports a factual finding that the defendant formed a separate intent to commit each criminal act.5.1
The State may charge different theories of criminal liability for the same offense in a single indictment. Whether multiple theories of criminal liability for the same offense are alleged in a single count or in multiple counts, the jury must (unanimously) decide which method – if any – was used to commit the alleged offense. But where the jury unanimously finds that the defendant used multiple methods to commit a single offense, the multiple counts merge, and the trial judge may enter judgment only on one count. Failure to do so constitutes a violation of double jeopardy.5.2
As a general rule, where the same act constitutes a violation of the laws of more than one jurisdiction, it is not a violation of the constitutional prohibition against double jeopardy to prosecute and punish the violation in either or both jurisdictions. This applies even if the defendant is acquitted in one jurisdiction before the trial takes place in a second jurisdiction, and it applies where one jurisdiction is the United States and the other jurisdiction is Delaware.6 A possible exception, alluded to but not specifically approved by the United States Supreme Court, is where the state court prosecution is a sham or cover for what is essentially a second federal prosecution for the same offense.7 Whether or not such an exception is recognized, the fact that the federal authorities turned over evidence to the State is not sufficient to sustain a conclusion that the prosecution by the State is a sham and a cover for a second federal prosecution.8
The separate sovereign theory does not apply to political subdivisions within a state, such as counties and cities, as they are not considered sovereign entities, but instead are regarded as subordinate governmental instrumentalities created by the State to assist in carrying out governmental functions.8.1
A second inquiry in determining whether a subsequent prosecution is barred is whether jeopardy attached in the first trial and the effect or non-effect of such jeopardy as a result of subsequent events. In a jury trial, jeopardy attaches when the jury is impaneled and sworn.9 In a non-jury trial, jeopardy attaches when the first witness is sworn.10
The circumstances under which subsequent events will or will not bar a subsequent prosecution because of double jeopardy have been codified in the Delaware Criminal Code. When a prosecution results in an acquittal, whether by a finding of not guilty by the trier of fact which has not been set aside or by a determination by the court that the evidence presented was insufficient to justify a conviction, a prosecution for a violation of the same statutory provision based on the same facts as the former prosecution is barred.11 A finding of guilty of a lesser included offense constitutes an acquittal of the greater included offense, even if the conviction is subsequently set aside.12 When a final order or judgment in favor of a defendant necessarily requires a determination inconsistent with a fact or legal proposition that must be established for a finding of guilt in the subsequent prosecution for the same statutory violation based on the same facts, the subsequent prosecution is barred.13 When the prosecution results in a conviction, whether by judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment or a plea of guilty or nolo contendere accepted by a court, a subsequent prosecution for the same statutory violation based on the same facts is barred.14
A subsequent prosecution of the same nature is also barred if the former prosecution was improperly terminated, i.e., for reasons not amounting to an acquittal, and the termination occurs after the first witness is sworn but before the verdict.15 A termination will not be deemed improper if the defendant consents to the termination or waives, by motion to dismiss or otherwise, the right to object to the termination.16 Thus, if a defendant successfully obtains a dismissal on grounds unrelated to any determination of guilt or innocence and the government obtains a reversal of that dismissal on appeal, double jeopardy will not bar a new trial, even where the dismissal was obtained after the jury or the first witness was sworn.17
A subsequent prosecution will not be barred on the ground of double jeopardy when the court has declared a mistrial upon the request of the defendant,18 except where bad faith conduct by a prosecutor compels a defendant to seek a mistrial, thereby affording the prosecutor a more favorable opportunity to convict the defendant.19 If a judge declares a mistrial sua sponte, a subsequent prosecution will be barred unless it is clear from the record that the declaration of a mistrial was a manifest necessity, that is, no less drastic measure was available to cure the prejudicial effect of the act that resulted in the declaration of a mistrial.20 A new trial will not be barred if a mistrial is declared due to the jury’s inability to reach a verdict.21 Similarly, if a court sua sponte dismisses a prosecution after conclusion of a trial but before a jury verdict on the ground of lack of subject matter jurisdiction, and the defendant acquiesces in that decision, a subsequent reversal of that jurisdictional determination does not bar retrial on double jeopardy grounds.21.1
A reversal of a conviction other than on the merits and the grant of a new trial will not bar a retrial.22 However, double jeopardy will bar a retrial where a conviction has been subsequently overturned due to the insufficiency of the evidence.22.1 Where a conviction is held invalid on appeal or on a writ of habeas corpus, coram nobis or similar process, a subsequent prosecution will not be barred.23
Similarly, double jeopardy does not prevent a subsequent trial if the former prosecution was before a court lacking jurisdiction over the defendant or the offense,24 or where a former prosecution was procured by the defendant without the knowledge of the appropriate prosecuting officer and with the purpose of avoiding the sentence that might otherwise be imposed.25
Double jeopardy principles do not apply in the context of a grand jury proceeding. Thus, the fact that one grand jury refused to return an indictment does not bar a subsequent grand jury from indicting a defendant on the same charge sought from the first grand jury.25.1
Notwithstanding the general rule that the federal and Delaware Constitutions do not bar separate or successive prosecutions for the same offense in different jurisdictions, the Delaware Criminal Code contains provisions establishing such a bar for second prosecutions in Delaware where the conditions set forth in the statutes are met. Similarly, the Criminal Code sets forth the circumstances under which a prior prosecution for a different offense will constitute a bar to a second prosecution. These are discussed in the following section.
Double jeopardy does not preclude the imposition of a civil fine or remedy as well as a criminal penalty.26 However, where the government seeks to subject a defendant who has already been punished criminally to an additional civil sanction which may be characterized as penal rather than remedial, double jeopardy may protect the defendant from that additional sanction.26.1
1. U.S. Const. am. V; Del. Const. art. I, § 8. The Fifth Amendment of the federal Constitution is made applicable to the states by virtue of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969); State in interest of Mullikin, 455 A.2d 371, 372 (Del. Fam. 1982).
2. Sisson v. State, 903 A.2d 288, 309 (Del. 2006); Nance v. State, 903 A.2d 283, 286 (Del. 2006); Washington v. State, 836 A.2d 485, 487 (Del. 2003); Williams v. State, 796 A.2d 1281, 1285 (Del. 2002); Chao v. State, 604 A.2d 1351, 1360 (Del. 1992); State v. Cook, 600 A.2d 352, 354 (Del. 1991); State v. Willis, 673 A.2d 1233, 1235 (Del. Super. 1995).
3. Sullins v. State, 930 A.2d 911, 915 (Del. 2007); Tarr v. State, 486 A.2d 672, 674 (Del. 1984); State v. Heitter, 203 A.2d 69, 71 (Del. 1964).
4. Nance v. State, 903 A.2d 283, 286 (Del. 2006); DeShields v. State, 879 A.2d 591, 593 (Del. 2005), cert. denied 546 U.S. 1188 (2006); Seward v. State, 723 A.2d 365, 375 (Del. 1999); Forrest v. State, 721 A.2d 1271, 1278 (Del. 1999); Chao v. State, 604 A.2d 1351, 1361 (Del. 1992); State v. Cook, 600 A.2d 352, 355 (Del. 1991); State v. Turner, 168 A.2d 539, 542 (Del. 1961); State in the interest of Mulliken, 455 A.2d 371, 373 (Del. Fam. 1982); State v. Sheeran, 441 A.2d 235, 239 (Del. Super. 1981), cert. denied, 497 A.2d 791 (Del. 1985); State v. Hamilton, 318 A.2d 624, 627 (Del. Super. 1974).
4.1. Poteat v. State, 840 A.2d 599 (Del. 2003); State v. Willis, 673 A.2d 1233 (Del. Super. 1995).
4.2. See 11 Del. C. § 207.
5. Pierce v. State, 911 A.2d 793, 796 (Del. 2006); Washington v. State, 836 A.2d 485, 488-92 (Del. 2003); Williams v. State, 796 A.2d 1281, 1288 (Del. 2002); Feddiman v. State, 558 A.2d 278, 288-89 (Del. 1989).
5.1. Pierce v. State, 911 A.2d 793, 796 (Del. 2006); Spencer v. State, 868 A.2d 821, 823 (Del. 2005).
5.2. Zugehoer v. State, 980 A.2d 1007, 1013-14 (Del. 2009).
6. In re Petition of Hovey, 545 A.2d 626, 629 (Del. 1988); State v. Sheeran, 441 A.2d 235, 238 (Del. Super. 1981), cert. denied, 497 A.2d 791 (Del. 1985). The Delaware Uniform Controlled Substances Act bars a subsequent prosecution for a violation of the Act where an acquittal or conviction was obtained in another state or federal court for the same act. 16 Del. C. § 4760.
7. Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959). The court merely noted that the facts in the record did not support the claim. One of the dissenting opinions took the opposite view and advocated recognition of the exception. Id. at 64-70 (Brennan, J., dissenting).
8. State v. Hovey, Cr. A. Nos. N88-0l-0125-0l33, slip op. at 3, Bifferato, J. (Del. Super. May 20, 1988).
8.1. State v. Willis, 673 A.2d 1233, 1241 (Del. Super. 1995).
9. Hughey v. State, 522 A.2d 335, 339 (Del. 1987); Tarr v. State, 486 A.2d 672, 674 (Del. 1984); Fanning v. Superior Court of New Castle County, 320 A2d 343, 344 (Del. 1974).
10. Tarr v. State, 486 A.2d 672, 674 (Del. 1984); State v. Korotki, 418 A.2d 1008, 1012 (Del. Super. 1980). See also State v. Yearly, Cr. A. No. S91-09-0000A, slip op. at 3-4, Lee, J. (Del. Super. June 10, 1984) (in a non-jury trial where the parties agreed that the State would try its case based on the sworn testimony produced at the pre-trial suppression hearing, double jeopardy attached upon the swearing of the first witness at that hearing).
11. 11 Del. C. § 207(1).
12. 11 Del. C. § 207(1).
13. 11 Del. C. § 207(2).
14. 11 Del. C. § 207(3). See also Tan v. State, 486 A.2d 672, 674 (Del. 1984) (double jeopardy attaches upon a guilty plea prior to trial).
15. 11 Del. C. § 207(4).
16. 11 Del. C. § 207(4)(a).
17. State v. Pusey, 600 A.2d 32, 36-37 (Del. 1991).
18. Bailey v. State, 521 A.2d 1069, 1075 (Del. 1987).
19. 11 Del. C. § 207(4)(b); Sullins v. State, 930 A.2d 911, 916-16 (Del. 2007); Sudler v. State, 611 A.2d 945, 948-49 (Del. 1992); State v. Long, No. K91-12-0047, slip op. at 8-9, Steele, J. (Del. Super. July 23, 1992), aff’d mem., 628 A2d 84 (Del. June 21, 1993) (dismissing indictment with prejudice on ground of prosecutorial misconduct); State v. Washington, Cr. A. Nos. IN9l-0558-0560, slip op. at 5-7, Herlihy, J. (Del. Super. Feb. 13, 1992).
20. Sudler v. State, 611 A.2d 945, 949 (Del. 1992); Bradley v. State, 559 A.2d 1234, 1236 (Del. 1989); Hughey v. State, 522 A.2d 335, 338 (Del. 1987); Bailey v. State, 521 A.2d 1069, 1078-79 (Del. 1987); Fanning v. Superior Court of New Castle County, 320 A.2d 343, 345 (Del. 1974); Rentoul v. State, 301 A.2d 284, 285-86 (Del. 1973).
21. Winston v. State, No. 179, 1991, slip op. at 7, Holland, J. (Del. Jan. 11, 1993) (ORDER), disposition reported at 620 A.2d 859 (Del. 1993) (TABLE).
21.1. State v. Schmitt, No. 0008011114, Henriksen, J. (Del Fam. Ct. Jan. 17, 2001).
22. 11 Del. C. § 210(3); Sudler v. State, 611 A.2d 945, 948 (Del. 1992); In re Petition of Hovey, 545 A.2d 626, 629 (Del. 1988); Bailey v. State, 521 A.2d 1069 (Del. 1987); Hughes v. State, 490 A.2d 1034, 1050 (Del. 1985).
22.1. Monroe v. State, 652 A.2d 560, 567-68 (Del. 1995).
23. 11 Del. C. § 210(3).
24. 11 Del. C. § 210(1).
25. 11 Del. C. § 210(2).
25.1. State v. McLaughlin, Cr. A. Nos. IN97-08-1040-1042, Goldstein, J. (Del. Super. Feb. 10, 1998).
26. Tarr v. State, 486 A.2d 672, 675 (Del. 1984); State v. Kamalski, 429 A.2d 1315, 1318 (Del. Super. 1981). See also Wilhelm v. Ryan, 903 A.2d 745, 752 (Del. 2006) (double jeopardy does not preclude a party convicted of a criminal statute from being subjected to punitive damages in a civil suit arising out of the same conduct); Hetrick v. Locklear, C.A. No. 89C-OC-89, slip op. at 6, Del Pesco, J. (Del. Super. Jan. 29, 1991) (same).
26.1. State v. McCarthy, Cr. A. Nos. 94-10-0918-0920 & 94-10-0075, slip op. at 3-6. DiSabatino, J. (Del. Comm. Pls. Feb. 13, 1995).
© 2010 David L. Finger