I spend a decent amount of time talking to people who have been charged with a crime. Perhaps more than most people. It is amazing how many people's understanding of the law differs from what the law actually is.
The double jeopardy clause may be the part of the criminal law least understood by people who are not in the criminal justice system. The double jeopardy clause prevents the federal government, or a state government, from prosecuting you twice for the same crime.
Here are some things that the double jeopardy clause does not prevent:
- Being prosecuted in a federal court for the same conduct that was in a state case.
- Having a higher sentencing guidelines range because of a prior conviction
- The government telling the judge at sentencing that you have a prior conviction
- Having a higher mandatory minimum because of a prior conviction
- The jury in a case being told about your prior conviction
That last one is hard. The double jeopardy clause doesn't prevent the government from telling the jury about a person's prior conviction for a similar crime.
That doesn't mean, of course, that a prosecutor's ability to tell the jury about a prior conviction is boundless. It is bounded by Federal Rule of Evidence 404(b).
Rule 404(b) says that a prior bad act, like a criminal conviction, can be presented to a jury as long as it isn't being presented just to prove that the person on trial is a bad person, but, rather, that he or she has "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident".
In an outlier case, this rule makes some sense - if a guy was previously convicted of committing a murder while wearing a pink prom dress, and is on trial again for committing a new murder in a pink prom dress, we can probably agree that the jury may find his prior pink prom dress murder particularly helpful. The government isn't introducing the evidence just to make him seem like a bad guy, but like a very particular kind of pink-prom-dress-murdering bad guy.
The way the rule is written is slippery though. The Eighth Circuit's recent case, United States v. Williams, shows how slippery this can be.
Mr. Williams was on trial for drug distribution. He had a prior conviction for drug distribution. The government wanted to tell the jury about his prior conviction to prove that he knew how being a drug dealer worked. Knowledge, of course, is a reason to introduce evidence under 404(b).
This let the government go hog wild on Williams knowledge of the drug dealing life. The facts of the case (see for yourself in the opinion) don't really show that Williams needed to know much more than what a regular viewer of The Wire would know. Yet Rule 404(b) let the government tell the jury over and over again - "mark[ing] Williams as a previous drug dealer."
The district court, thankfully, found that the government went too far. They were simply tarring Williams with his past conviction. Sadly, this district court may be an outlier. Rule 404(b) is routinely stretched to allow any kind of prior criminal conduct that was related in almost any way to go to a jury.
* And, by the way, kudos to the district court for having the humility to correct a prior mistake. Though, he's not in the Sixth Circuit.
Related articles
- As bad as the courts have made Rule 404(b), at least it's not Texas, see Mean But Stupid
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The Federal Criminal Appeals Blog is published by The Kaiser Law Firm PLLC in Washington, DC. The Kaiser Law Firm represents people who have been charged with federal crimes, are under federal investigation, or have a federal criminal appeal.If you'd like to speak with us, please call (202) 640-2850. Odds are we'd love to talk to you.
One of my favorite U.S. Supreme Court cases is Ashe v. Swenson, 397 U.S. 436 (1970). Ashe holds that collateral estoppel is encompassed within the notion of double jeopardy, thereby expanding the protection of the Double Jeopardy Clause considerably.
The defendant in Ashe was charged with robbing six men involved in a poker game. Because the robbery of each individual involved a fact (i.e., the individual's identity) unique to that individual, the defendant was appropriately charged with six different counts of robbery.
The defendant was initially tried for the robbery of one of the poker players. The poker player and three other victims of the robbery testified at the trial against the defendant. Although proof that the robbery had occurred was "unassailable," the government's case that the defendant was present during the robbery was "weak," and the defendant was acquitted.
The defendant was then tried for the robbery of a second member of the poker game. This time, although "the witnesses were for the most part the same," their testimony "was substantially stronger on the issue of the [defendant's] identity." The prosecutors admitted that the first prosecution had in effect served as a dry run for the second.
The Supreme Court reversed the conviction and remanded for further proceedings. Because the second prosecution involved a different victim of the robbery, and thus involved a fact that had not been litigated in the first prosecution, it did not violate a narrow and perhaps more traditional interpretation of the Double Jeopardy Clause. At the same time, holding that collateral estopped is encompassed within the Fifth Amendment guarantee against double jeopardy, the Court stated that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit."