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Interpreting State Constitutional Provisions Governing Double Jeopardy

Free «Interpreting State Constitutional Provisions Governing Double Jeopardy» Essay Sample


The Double Jeopardy Clause provided protection in three ways. These approaches include the following: a second prosecution for a similar offense after the offender has been acquitted; the same is applicable when the perpetrator has been convicted; finally, multiple punishments for a similar violation (Colb, 2011). The Clause, as stated in the Fifth Amendment, involves a constitutional protection of repeat offenders that provides finality to any criminal proceedings (Cicchini, 2007). There is significant controversy among legal scholars related to the court’s determination of the Clause’s applicability in cases either of mistrials or where the convictions have been reversed, especially when this happens as an outcome of the misconduct by the prosecution. In light of this fact, the prosecutorial misconduct is currently rampant at every stage of criminal processes (Cicchini, 2007). It poses a significant risk and a unique set of difficulties, particularly at the trial phase, for those accused of crimes as well as the judges. For the last two decades, the Supreme and State Courts have had disagreements regarding the standards for applying the Double Jeopardy Clause where there is the prosecution misconduct (Cicchini, 2007). This paper, therefore, provides a historical outlook of the Double Jeopardy Clause’ development and its application in cases of the prosecution misconduct, examines the nature of the protection that is determined by the Clause, explains the need to balance between the public and offenders’ interests, and highlights the reasoning inherent between the State and Supreme Courts of the Clause’s applicability and the recommendations for handling the controversy.


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Issue Identification

In the case of Oregon vs. Kennedy, during the theft trial, the state expert’s witness provided a testimony. Upon the cross examination, the latter acknowledged that he had previously filed a criminal complaint against the respondent once before, though no action was taken (Oregon vs. Kennedy, 1982). On the redirect interrogation, there were numerous objections sustained by the court to the questions issued by the prosecutor and targeted at establishing why the complaint against the respondent was filed by the witness (Oregon vs. Kennedy, 1982). After determining that he had no prior engagements with the prosecutor, it was questioned whether the respondent’s actions had the criminal nature; thus, the case was judged a mistrial.

Upon the future retrial, the court denied the respondent’s contention referring to the Double Jeopardy Clause as applicable by the States’ 14th Amendment that prevented the further prosecution (Oregon vs. Kennedy, 1982). The announced argument is that it was not the prosecutor’s intention to cause a mistrial. The respondent was still convicted, but later, the appeals court of Oregon, based on the Double Jeopardy, reversed the ruling due to, as it was stated, the unintentional misconduct by the prosecution that led to the mistrial.

It is relevant to note that in the initial ruling, the Supreme Court limited the protection offered to Kennedy by placing the attention on the prosecutor’s intention, which was against the precedent where the misconduct barred prevented a retrial on the basis of overreaching in the determination. This decision was reversed by the Oregon court, resulting in a split among different state courts on the applicable standards when dealing with cases of the misconduct. The paper examines the background of the case, its development as well as recommendations for dealing with this still existing dilemma.

Background & Purpose of the Clause

The Clause is among the oldest within the Western civilization. Athenian statesman Demosthenes in 355 B.C. indicated that the law does not allow the offender to be tried twice for the same issue (Preuss, 2016). In 533 A.D., the Romans in the Digest of Justinian codified this principle that survived through the Dark Ages that occurred between 400 and 1066 A.D (Preuss, 2016). It was achieved through the canon law and Christian teachings during these early ages of Christianity, notwithstanding the decline of other traditions, especially the Greco-Roma legal ones (Preuss, 2016). This protection contained in the clause was a universal maxim in Britain in the common law and was embraced by various renowned jurists at the time, including Henry de Bracton, Sir’s Edward Coke, Matthew Hale, and William Blackstone (Preuss, 2016). However, this English version was narrow, protected individuals with capital felonies, and was applicable following the conviction or the acquittal (Preuss, 2016). It was irrelevant in cases that were dismissed before the final judgment and was often abused by the Crown.

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The colonists in America had the intimate knowledge of the Sirs writings with copies of their publication. For example, Blackstone’s Commentaries on English Law was readily available and quoted for supporting their claim that the parliament was exceeding the authority given to it by law. They were also aware of the narrow provision of the Clause as provided in Britain (Finkelman, 2013). James Madison in one of the constitutional conventions targeted the expanding of this clause including other offenses in addition to capital felonies (Finkelman, 2013). However, a person is not subject to the multiple punishments and/or trials for the same offense (United States v. Halper, 1989), which was considered to be restrictive (Finkelman, 2013). A number of House members disagreed with the words stating that they would bar defendants from seeking retrials after the conviction (Finkelman, 2013). The wording of the Fifth Amendment was ratified, but the final version still left other questions for the judicial interpretation.

As indicated above, the Clause protects individuals from multiple prosecutions for the same offense after being acquitted or convicted, including multiple punishments for a similar crime. It also provides the protection to the defendants from attempts of overzealous prosecutors to re-litigate despite the past acquittal or increase punishments following a conviction (Colb, 2011). Finally, it balances the powers of the government and the defendant’s de minimis influence that is protecting the rights of the latter while ensuring that it is not a channel for punishing the prosecutors (Colb, 2011). In regards to the policy that underlies the Clause, its reasons include the preservation of final judgments and the protection of defendants from hardships associated with multiple trials for a similar offense.

It is the interest of the government, therefore, to weigh the rights of the defendant in the establishment of the truth with the simple implementation of the Clause. The society, on the other hand, is interested in enforcing the law effectively, discouraging criminal engagements, and protecting the public from the released criminals due to the prosecutorial misconduct. Hence, the authorities should be provided with the sufficient time to secure a conviction. The prosecutor, in this regard, is a representative of the government working to achieve the interest of both parties and must remember that seeking justice requires remarkable judgment and focus on avoiding the lure of exercising an unfair advantage over the defendant.

The key principle of the Double Jeopardy Clause is contained under the criminal jurisprudence principles implying that there are specific guidelines for handling mistrials and convictions that have been reversed with the Clause’s context (Edgely, 2007). A mistrial that is requested or consented to by a defendant with the absence of the prosecutorial misconduct nullifies the applicability of the Clause (Edgely, 2007). The only undisputed exception in a case where the Clause is considered to be applicable is if the evidence is insufficient as it is deemed to be an acquittal, which is protected under the Clause.

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Making reference to the case of Oregon v. Kennedy, earlier the prosecutorial misconduct was preventing the retrial of a defendant, and the only way to attain it was the latter’s request for a mistrial. This barrier for a mistrial proceeded even further in the case where the misconduct was the outcome of the bad faith and harassed or was prejudiced against the defendant (Emanuel, 2009). Out of the rulings of this case, there was the increased protection of accused from the prosecutorial misconduct, causing the debate on expanding the protective scope of the Clause (Emanuel, 2009). Particularly, the Supreme Court initially argued that the misconduct from the prosecutor prevented a retrial on the foundation that it was to effectuate the defendant to request a mistrial (Emanuel, 2009). However, several justice processes indicated that the misconduct by the prosecutor never met the standard; hence, the Clause could not protect the defendant (Emanuel, 2009). It created the suggestion that the previous exception was not able to provide any standard to assist in determining the misconduct’s intention to bar a retrial following the request for a mistrial.

The subsequent reasoning was that the misconduct by the prosecutor was intentional and prejudiced as it was targeted at convicting the defendant. It was indicated that the previous ruling was overreaching, and this permitted numerous opportunities for the defendant to bar a retrial. (Emanuel, 2009) Therefore, the Court employed its own standards of the prosecution that focused on the intention of the prosecutor rather than his misconduct as it is believed that this was more manageable and would provide a consistent channel for reaching informed decisions (Emanuel, 2009). It was also established that a broader standard, such as contained in the Double Jeopardy Clause, does not provide any extra protection to the defendant as compared to the limited law.

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This decision resulted in a debate within the Supreme Court among different judges. Some of them felt that the existing standards, particularly those in the Double Jeopardy Claus, should have been applied instead of creating new ones that ignore misconducts (Finkelman, 2013). Therefore, they did not protect the defendant in the discussed cases as required by the Clause.

The applicability of the Double Jeopardy Clause was subject to the consideration as a result of the disagreements among the judges. The Oregon v. Kennedy case placed a rift among different state courts because some of them had adopted the Kennedy standard arguing that it should be applied for the analysis under the US Constitution or that the mistrial is sufficient as a punishment to the prosecutor (Masur & Ouellette, 2014). Other courts established their standards involving, for example, the means of barring mistrials.

From the above discussion, it is evident that numerous alternatives to the ruling provided by the Supreme Court in the Kennedy case exist. These options as highlighted above have already been adopted by states that chose to set their own norms. However, even more possible variations are available. They are, for instance, the plain error standard that permits the appellate court to review decisions and the retrial prevention where the evidence is excluded, intentionally introduced, or eliminated to force a prosecution (Masur & Ouellette, 2014).

The splitting of the judges was caused by an attempt to create a universal means of mistrials due to the prosecutorial misconduct. However, not only in the case of Kennedy but also in law generally, there is no single universally accepted standard for dealing with any legal issues. Consequently, the country became divided regarding the applicable norm that would allow the protection of the defendant under the Double Jeopardy Clause while ensuring the society is protected through convictions of those found guilty. Currently, it is still a significant challenge that has not been handled.


It is not necessary to rectify ambiguities under the law using the means applied by the Kennedy court despite the judges’ recognition of the overreaching standard in the case. Therefore, their decision to create a single norm based on an assumption of the prejudiced intent by the prosecutor is flawed because the courts and the judges were subjected to judicial guessing, which is not a standard for the legal practice. It can be attributed to three factors: it involves the determination of the intended misconduct, the second intention is not clearly specified, and the third one is unreliable as prosecutors often deny their engagement in the misconduct. Moreover, the court argued that the Double Jeopardy Clause is not persuasive as the norms in the case were difficult to satisfy. However, the narrow standard the court developed also ignores the prosecutor’s misconduct.



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As discussed, the judges’ disagreement led to the split of courts with some adopting the Kennedy judgment. At the same time, they are dependent on the available alternatives that have minimal relevance to the purpose of the Clause, namely protecting the defendant. On the other hand, those against the Kennedy ruling are focused on the defendant’s protection with some level of failure as every state has its own standards of establishing the prosecutor’s intention. Consequently, the alternatives also fail.

The notion that any form of the misconduct should lead to the implementation of the Clause has its own shortcomings. Specifically, if the clause is only targeted at protecting defendants rather punishing prosecutors, only the misconducts affecting these rights would need an intervention. The attention should not be to the prosecutor but the defendant. In this regard, the intentional misconduct has similar outcomes from the defendant’s perspective. Therefore, there is a little distinction as the former rarely occurs to deny a defendant a fair trial while the focus should consider if the misconduct bared a fair trial.

This concept will hence be based on the Double Jeopardy Clause and will not need to establish the intention of the prosecutor. Courts are, therefore, tasked with determining the intention of the prosecutor and whether it led to the request for a mistrial or a conviction. If this relationship is established, the defendant should not be retried. It applies to mistrials and reversed convictions where the unsuccessful request for a mistrial or a reversal of a conviction should be similar to a requested mistrial as they both may involve the prosecutorial misconduct as it discourages the hiding of misconducts and prevents the appellate from interfering with the independence and the freedom of the jury as the court may become objective.

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The Double Jeopardy Clause becomes a significant factor when the prosecutorial misconduct may result in the wrong convictions, especially if the prosecution is prejudiced. It creates the significant court disputes, and the Supreme Court as per the Kennedy case places its focus on the intention of the prosecutor. Due to the different perceptions and points of view, some states have developed their standards in the determination for a defendant’s eligibility for a retrial. However, the courts should be focused on creating a balance for protecting the defendant and the society, remaining objective to its course. From the Oregon v. Kennedy case, the standards the Supreme Court set are unfair to the defendant while those developed by states that oppose these standards are also over-protective of the defendant. The norms that have been expanded address the weakness of the limited law created by the Supreme Court’s judges. However, other alternatives exist as indicated above, with the preferred approach not focusing on the intention of the misconduct but rather on its impact. Moreover, it suggests that it should concentrate on the right of the defendant, not the type of a case. However, the following fact is certain: having a universal approach to handling the prosecutorial misconduct is still unattainable.

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