TWO CONSTITUTIONAL WRONGS DO NOT MAKE
A RIGHT: DOUBLE JEOPARDY AND
PROSECUTORIAL MISCONDUCT
UNDER THE BRADY DOCTRINE
Adam M. Harris*
INTRODUCTION
On June 20, 1994, David Gene Lewis, a California correctional
officer, shot and wounded an inmate, Harry Long, during an altercation
in the prison yard.1 Five years later, a federal grand jury charged Lewis
with several federal crimes in conjunction with the shooting.2 Lewis
stood trial on the charges and was convicted.3 In January 2002, the
Court of Appeals for the Ninth Circuit reversed Lewis’s convictions and
remanded for a new trial, holding that that the district court erred by
excluding from trial a report by the Shooting Review Board.4
After remand, the government revealed that it was aware of
potentially exculpatory material not previously disclosed to Lewis.5
* Articles Editor, Cardozo Law Review, J.D. Candidate (January 2007), Benjamin N.
Cardozo School of Law, B.S., Foreign Service, Georgetown University (December 2003). I wish
to thank my editors at the Cardozo Law Review for their guidance throughout the writing of this
Note, especially Haifeng Peng for his constant assistance and Phil Wellner for serving as a
sounding board for arguments. Special thanks go to Haifeng and to his colleagues at the
Manhattan District Attorney’s Office for suggesting the topic. Professor Kyron Huigens offered
valuable guidance and direction as I began the writing process. I would like to extend profound
appreciation to Steven W. Edwards for teaching me to revere the practice of law and to think like
a lawyer long before I began law school. Finally, thank you to my family and to Katie Vezeris
for their unwavering support.
1 See United States v. Lewis, 368 F.3d 1102, 1104 (9th Cir. 2004).
2 Lewis was charged with violating 18 U.S.C. § 242 (2000), Deprivation of Rights Under
Color of Law, which makes it a crime for anyone acting “under color of any law” to “willfully
subject[ ] any person . . . to the deprivation of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States.” He was also charged with violating
18 U.S.C. § 924(c), Use of a Firearm in Relation to a Crime of Violence, which increases the
sentence of anyone convicted of a crime of violence or drug trafficking crime, if that person used
or carried a firearm in furtherance of the commission of the crime. See Lewis, 368 F.3d at 1104.
3 See Lewis, 368 F.3d at 1104.
4 Id. The report had concluded Lewis acted in a “manner consistent with relevant policy of
the California Department of Corrections.” United States v. Lewis, 27 F. App’x 768, 769 (9th
Cir. 2001) (unpublished opinion).
5 Lewis, 368 F.3d at 1104. The evidence consisted of statements by the victim Long that his
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Lewis moved to dismiss the second prosecution.6 He contended that by
withholding exculpatory evidence, the government had violated the
doctrine of Brady v. Maryland,7 which held that a prosecutor violates
due process by suppressing evidence favorable to an accused, so long as
the evidence is material either to guilt or to punishment.8 But Lewis
went further: he also argued that because the prosecutor had
intentionally withheld evidence in order to avoid an acquittal, the
Double Jeopardy Clause9 of the Fifth Amendment barred a second
trial.10 After all, Lewis had been put on trial once, and by his
contention, the prosecutor had gone to trial in possession of evidence
that potentially undermined the government’s case—evidence that
Lewis claimed he was entitled to under Brady.11 Now, the state sought
to put him on trial again for the same offense. This would seem to
violate the underlying purpose of the Double Jeopardy Clause: that
given the extent of the state’s powers and resources, it is profoundly
unfair to subject an individual to multiple trials for the same crime.12
To do so would subject the defendant to the financial expense,
humiliation, and stresses of the criminal process, put him in a great state
of uncertainty, and at the same time, increase the chance that he be
wrongfully convicted.13 Nevertheless, the district court denied Lewis’s
motion.14 The Ninth Circuit upheld that decision, holding that the
government’s alleged violations of Brady did not implicate the Double
Jeopardy Clause or otherwise bar a retrial.15
This Note argues that the Double Jeopardy Clause does, in fact, bar
a subsequent trial after the prosecution withholds evidence from the
defendant in violation of Brady v. Maryland. Severe prosecutorial
fellow combatant in the prison yard had a weapon, as well as a statement by another prison guard,
who said that “it would be very difficult to see what was really happening” from the tower where
the events occurred. Id.
6 Id.
7 373 U.S. 83 (1963).
8 Id. at 87. The standard for what evidence now constitutes “Brady” material has changed
since the case was originally decided. See infra Part I.
9 The “Double Jeopardy Clause” states: “[N]or shall any person be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V.
10 See Lewis, 368 F.3d at 1106.
11 Id. On appeal, the court assumed a Brady violation had occurred in order to evaluate his
double jeopardy claim. See id. at 1108.
12 See Green v. United States, 355 U.S. 184, 187 (1957); see generally Note, Double
Jeopardy: The Reprosecution Problem, 77 HARV. L. REV. 1272 (1964) (describing the history
and the purpose of the Double Jeopardy Clause).
13 Green, 355 U.S. at 187-88 (purpose of Double Jeopardy Clause “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” and thereby subject the individual “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”).
14 See Lewis, 368 F.3d at 1104.
15 Id. at 1109.
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TWO WRONGS DO NOT MAKE A RIGHT
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misconduct rising to the level of a Brady violation directly infringes
upon the important policies underlying the Double Jeopardy Clause—
namely, that an individual should be protected from harassment by the
state and from the threat of being wrongly convicted.16 Under existing
jurisprudence, the Supreme Court reads the Double Jeopardy Clause to
prohibit a retrial where the prosecution “goads” a defendant into
moving for a mistrial.17 This Note argues that the Double Jeopardy
Clause also bars a retrial when a prosecutor violates a defendant’s
fundamental constitutional right to exculpatory information, and
simultaneously disregards the substantial risk that the violation will
necessitate multiple trials. This Note also argues that in balancing
society’s needs with the defendant’s rights under its double jeopardy
analysis, courts should be mindful of the values that the Brady rule
encompasses.
Part I of this Note sets out general principles of the Brady doctrine.
Part II examines the history and purpose of the Double Jeopardy Clause,
focusing on cases resulting in a mistrial or a reversal on appeal. Part III
explains why the Double Jeopardy Clause ought to prohibit a
subsequent retrial, both where a Brady violation results in a mistrial,
and where a violation is discovered after trial.
I. THE BRADY RULE
In contrast to civil litigation, there is little formal discovery in
criminal cases.18 At the beginning of the twentieth century, there was
virtually no discovery allowed in criminal cases at all, to the extent that
Justice Cardozo, writing in 1927, could identify only “[t]he beginnings
or at least the glimmerings” of a “power in courts of criminal
jurisdiction to compel . . . discovery.”19 However, in 1963, the Supreme
Court held in the landmark case of Brady v. Maryland20 that a
prosecutor’s failure to disclose evidence favorable to an accused
16
17
See Green, 355 U.S. at 187-88.
See Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982) (holding that prosecutorial
misconduct necessitating a mistrial only triggers double jeopardy protection if the prosecutor
specifically intended to provoke the defendant into moving for the mistrial, and that double
jeopardy protection is inapplicable if the prosecutor simply intended the misconduct to help win a
conviction in the current trial).
18 Compare FED. R. CIV. P. 26, and FED. R. CRIM. P. 16. On the importance of discovery in
criminal cases, see generally Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV.
393 (1992) (“The most formidable threat to rationality and fairness in the adversarial system
comes not from restrictions on the exclusionary rule . . . , but from the prosecutor’s institutional
role in controlling access to information relevant to a defendant’s guilt, and the prosecutor’s
ability to withhold evidence that might prove a defendant’s innocence.”).
19 Lemon v. Supreme Court, 156 N.E. 84, 86 (N.Y. 1927).
20 373 U.S. 83, 87 (1963).
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violates due process, so long as the evidence is material either to guilt or
to punishment.21
Brady was an extension of an earlier Supreme Court case, Mooney
v. Holohan.22 In Mooney, a prosecutor knowingly used perjured
testimony and intentionally suppressed evidence that would have
impeached perjured testimony. The Court found that this suppression
violated the defendant’s right to due process.23 The Court used Mooney
to help define the extent to which the Due Process Clause of the
Fourteenth Amendment requires a prosecutor to share information with
a criminal defendant.24 The Court held that due process is not satisfied
by simply apprising the defendant of the charges against him and
providing a hearing where the state has “contrived a conviction through
the pretense of a trial which in truth is but used as a means of depriving
a defendant of liberty through a deliberate deception of court and
jury.”25
Seven years later, in Pyle v. Kansas,26 the Court expanded the rule,
suggesting that due process may also be violated where a prosecutor
deliberately suppresses evidence that is generally favorable to the
accused.27 Finally, in Brady, the Court ruled that due process is violated
when the prosecution fails to disclose evidence favorable to a defendant,
where the evidence is material to guilt or to punishment and the
defendant has requested such evidence.28 Brady had been charged with
murder, and his attorney requested that the prosecution allow him to
examine certain extrajudicial statements made by the defendant’s
alleged accomplice.29 The prosecutor produced several statements, but
omitted one in which the accomplice had admitted to perpetrating the
homicide.30
The Court rested its conclusion that Brady’s due process rights had
been violated on several fundamental precepts of fairness inherent in the
21
22
23
Id.
294 U.S. 103 (1935); see Brady, 373 U.S. at 86.
Mooney, 294 U.S. at 110 (due process violated by prosecutor’s knowing use of perjured
testimony).
24 Id. at 112; Brady, 373 U.S. at 87.
25 Mooney, 294 U.S. at 112.
26 317 U.S. 213 (1942).
27 Id. at 215-16 (“Petitioner’s papers . . . set forth allegations that his imprisonment resulted
from perjured testimony, knowingly used by the State authorities to obtain his conviction, and
from the deliberate suppression by those same authorities of evidence favorable to him. These
allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and,
if proven, would entitle petitioner to release from his present custody.”).
28 Brady, 373 U.S. at 87 (“We now hold that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”).
29 Id. at 84
30 Id.
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TWO WRONGS DO NOT MAKE A RIGHT
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American criminal justice system.31 The Court reasoned that society
benefited not merely from the conviction of the guilty, but also from the
fair treatment of defendants.32 The Court also pointed to the heavy
burdens that a criminal trial places on the defendant, holding that when
the prosecution suppresses exculpatory evidence, the prosecutor takes
the “role of an architect of a proceeding that does not comport with
standards of justice.”33
In Brady, the Court limited the rule to cases where the defense
specifically requests the exculpatory information.34 Later, in United
States v. Agurs,35 the Supreme Court extended the rule and held that a
prosecutor has a constitutional duty to volunteer exculpatory material
evidence to the defense, even in the absence of a specific request for
such evidence.36 In that case, the Court identified at least three different
situations to which the Brady rule applies.37 The first situation is the
one that arose in Mooney v. Holohan,38 where a prosecutor fails to
disclose evidence that a witness for the government is committing
perjury.39 The second situation, which occurred in Brady itself, exists
when the prosecutor denies defense counsel’s request for material
evidence.40 Finally, the third situation occurs when the defense has
made a general request for “all Brady material.”41 The Court then went
on to examine two important and related issues: the standard that courts
should apply in deciding what constitutes “material” evidence that must
be turned over to the defense upon request, and when, if ever, the
prosecution has a duty to disclose evidence to the defense absent any
request at all.42
The Court reviewed the distinction between a general request for
information and no request at all, concluding that a defendant who asks
for “all Brady materials” gives the prosecutor no better notice than a
31 For more on the development of the Brady doctrine, see Nicholas A. Lambros, Note,
Conviction and Imprisonment Despite Nondisclosure of Evidence Favorable to the Accused by
the Prosecution: Standard of Materiality Reconsidered, 19 NEW ENG. J. ON CRIM. & CIV.
CONFINEMENT 103 (1993); see also Note, The Prosecutor’s Constitutional Duty to Reveal
Evidence to the Defendant, 74 YALE L.J. 136, 142-45 (1964); Victor Bass, Comment, Brady v.
Maryland and the Prosecutor’s Duty to Disclose, 40 U. CHI. L. REV. 112 (1972).
32 Brady, 373 U.S. at 88.
33 Id.
34 See id. at 87.
35 427 U.S. 97 (1976).
36 Id. at 107. Agurs concerned the prosecutor’s failure to provide the defense counsel with
information about the murder victim that buttressed the defendant’s claim of self-defense. Id. at
99.
37 Id. at 103.
38 294 U.S. 103 (1935).
39 Agurs, 427 U.S. at 103.
40 Id. at 103-04.
41 Id. at 106.
42 Id. at 107.
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defendant who makes no request.43 If the prosecutor is under a duty to
respond to a general request, the Court reasoned, the duty must derive
from the “obviously exculpatory character” of evidence in the
prosecutor’s possession.44 When evidence is so indicative of innocence
that it triggers such a duty to disclose, the duty should also arise even if
the defendant makes no request whatsoever.45 The Court held that such
an obligation on the government is necessary both to provide a brightline rule that prosecutors can follow and to prevent potential injury to
the defendant who is denied evidence that could establish his
innocence.46
The Court then turned to the question of what evidence is subject
to the rule. When the defense makes a specific request for information,
the Agurs Court held that the prosecutor must either make the disclosure
or submit the issue to the trial court.47 However, when no request has
been made, or when the request is general, the question of what
constitutes material evidence is more problematic. The Court began its
analysis by recognizing that there is no requirement that evidence be
turned over to the defense merely because it might “influence” the
jury.48 Rather, constitutional error will be found to exist only if the
omitted evidence creates a reasonable doubt that did not exist without
the evidence.49 The omission must be evaluated in the context of the
entire record of the trial.50 The dissenters, however, argued that such a
standard is far too stringent to serve the underlying principal that a fair
criminal trial requires that the jury consider all evidence tending to
show both innocence and guilt.51 Justice Marshall wrote that the Court
had defined “material” evidence so narrowly as to “deprive it of all
meaningful content.”52
43
44
45
46
Id. at 106-07.
Agurs, 427 U.S. at 107.
Id.
Id. (“Whether we focus on the desirability of a precise definition of the prosecutor’s duty
or on the potential harm to the defendant . . . there is no significant difference between cases in
which there has been merely a general request for exculpatory matter and cases . . . in which there
has been no request at all.”).
47 Id. at 106 (“[I]t is reasonable to require the prosecutor to respond either by furnishing the
information or by submitting the problem to the trial judge. When the prosecutor receives a
specific and relevant request, the failure to make any response is seldom, if ever, excusable.”).
48 Id. at 108-09.
49 Id. at 112.
50 Id.
51 Id. at 116 (Marshall, J., dissenting); see also Moore v. Illinois, 408 U.S. 786, 810 (1972)
(opinion of Marshall, J., concurring in part and dissenting in part).
52 Agurs, 427 U.S. at 114. The stringency of this standard is made evident by comparing it to
the professional ethics requirements imposed on prosecutors. The ABA Standards for Criminal
Justice require much broader disclosure, covering any evidence tending to exculpate or mitigate.
See ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION & DEF. FUNCTION 33.11(a) (3d ed. 1993) (“A prosecutor should not intentionally fail to make timely disclosure to the
defense, at the earliest feasible opportunity, of the existence of all evidence or information which
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Subsequently, in addition to modifying the test of materiality, the
Court has also modified the scope of the Brady rule on several
occasions.53 Under current jurisprudence, a prosecutor’s duty to
disclose now covers evidence that could be used to impeach a witness,
so long as the impeachment evidence meets the Court’s test of
materiality under Brady.54 Moreover, the Brady rule now encompasses
evidence known not only to prosecutors, but also to police investigators;
the prosecutor thus has a duty to learn of and disclose any evidence
favorable to the defense which is known to the others acting on the
government’s behalf in the case.55
In Brady, the defendant’s remedy was a new trial.56 Courts
applying Brady have taken it to hold that a new trial is the defendant’s
sole remedy when he prevails on a claim that the prosecutor withheld
material evidence.57 Nevertheless, as David Gene Lewis argued on
appeal of his conviction,58 Brady violations also require analysis under
the Double Jeopardy Clause to determine whether a retrial is
constitutionally permissible.
II. THE DOUBLE JEOPARDY CLAUSE
A.
Background and History
The Fifth Amendment to the Constitution states that “[n]o person
shall . . . be subject for the same offence to be twice put in jeopardy of
life or limb.”59 This prohibition against “double jeopardy” was intended
to protect an individual from being subject to multiple trials for the
same offense.60 Such a prohibition has deep roots in the common law.61
tends to negate the guilt of the accused or mitigate the offense charged or which would tend to
reduce the punishment of the accused.”); see also MODEL RULES OF PROF’L CONDUCT R. 3.8(d)
(1984) (“The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all
evidence or information known to the prosecutor that tends to negate the guilt of the accused or
mitigates the offense.”).
53 For a description of the history of the materiality standard, as well as analysis about the
effect of the materiality standard on these types of cases, see Lambros, supra note 31.
54 See United States v. Bagley, 473 U.S. 667, 676 (1985). In Bagley, the evidence in question
would have been used to suggest a government witness was biased against the defendant. Id.
55 See id.
56 See Brady v. Maryland, 373 U.S. 83, 90-91 (1963).
57 See, e.g., United States v. Davis, 578 F.2d 277, 280 (10th Cir. 1978) (“[A] violation of due
process under Brady does not entitle a defendant to an acquittal, but only to a new trial in which
the convicted defendant has access to the wrongfully withheld evidence.”).
58 See United States v. Lewis, 368 F.3d 1102, 1104 (9th Cir. 2004).
59 U.S. CONST. amend. V. The double jeopardy provision of the Fifth Amendment was made
applicable to the states in Benton v. Maryland, 395 U.S. 784 (1969).
60 See Green v. United States, 355 U.S. 184, 187 (1957).
61 According to Blackstone, the prohibition “is grounded on this universal maxim of the
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The United States Supreme Court has described the policy underlying
the Double Jeopardy Clause as one that values finality for the
defendant’s benefit in criminal proceedings.62 Because the Clause
protects a defendant’s right to have his or her case decided before a
particular tribunal, its protections are triggered as soon the defendant’s
trial begins.63
The plain language of the Clause might imply that it constitutes an
absolute prohibition on subjecting a defendant to two or more trials for
the same crime.64 The Supreme Court has recognized, however, that a
criminal trial is usually an imperfect event, in which unpredictable
occurrences can derail the proceedings, and has therefore not read the
Clause to bar all retrials.65 United States v. Perez,66 which held that a
retrial was permissible following a hung jury, has long been regarded as
the touchstone of double jeopardy analysis in this regard.67 In that case,
the jury was unable to reach a verdict, and was discharged by the court
on its own initiative.68 Perez claimed that the Double Jeopardy Clause
prohibited a subsequent trial in such an instance.69 The Court
disagreed.70
Justice Story’s opinion for the Court in Perez made no specific
reference to prior cases or even to the text or purpose of the
constitutional provision.71 Rather, the Court declared that the law had
invested courts with an inherent authority to discharge a deadlocked
common law of England, that no man is to be brought into jeopardy of his life, more than once,
for the same offence.” WILLIAM BLACKSTONE, 4 COMMENTARIES *335. For more on the
historical background of double jeopardy, see JAY A. SIGLER, DOUBLE JEOPARDY: THE
DEVELOPMENT OF A LEGAL AND SOCIAL POLICY 2 (1969) (describing the history of the
protection in Greek and Roman law); Bernard J. Gilday, Jr. & Stephen E. Gillen,
Jeopardy-Meandering Through Mandates and Maneuvers, 6 N. KY. L. REV. 245, 245 (1979)
(Clause’s “evolution can be traced back literally through the ages—from the Constitutional
Convention, to the common law of England, through the Dark Ages, and deep into Greek and
Roman times.”); see also Comment, Twice In Jeopardy, 75 YALE L.J. 262, 262 n.1 (1965).
62 United States v. Jorn, 400 U.S. 470, 479 (1971).
63 See Green, 355 U.S. at 188; Wade v. Hunter, 336 U.S. 684, 688-89 (1949). The
protections begin very early in the trial process. See United States v. Sanford, 429 U.S. 14, 15
(1976) (holding jeopardy attached following empanelling of jury at defendant’s trial).
64 See supra note 9 (text of Double Jeopardy Clause).
65 See, e.g., United States v. Jorn, 400 U.S. 470, 479-80 (1971).
66 22 U.S. (9 Wheat.) 579 (1824).
67 See Wade, 336 U.S. at 689-90 (calling Perez the “guiding rule” on the issue, and stating
that Perez was the basis for all later Supreme Court decisions on double jeopardy up until that
point in history).
68 Perez, 22 U.S. at 579. Perez had been charged with a “capital offence,” the specifics of
which the Court omitted from its two-page opinion.
69 Id. at 579.
70 Id. at 580. Interestingly, the Court noted its awareness of “some diversity of opinion and
practice” on the issue across American courts; but, stated that after “weighing the question with
due deliberation” it was of the opinion that, at least in a case of a hung jury, no double jeopardy
protection was triggered that would prevent a subsequent trial.
71 See id. at 579.
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jury so long as there is “manifest necessity” for doing so.72 Otherwise,
the Court held, “public justice” would suffer.73 Justice Story cautioned
that the power was to be exercised only with great caution under
“urgent” circumstances.74 Essentially, the Court sought to balance the
protections afforded to the defendant by the Double Jeopardy Clause
with society’s interest in the maintenance of criminal prosecutions.75
B.
Double Jeopardy Following a Mistrial
The “manifest necessity” test, established in Perez, applies only to
cases where the court grants a mistrial even though the defendant did
not request a mistrial or consent to its declaration.76 In those cases, the
law generally follows Perez’s mandate that a defendant’s right to have
his trial completed by a particular tribunal may be superceded by the
public’s interest in putting defendants on trial to the point of a binding
verdict.77
When the defendant moves for a mistrial, the “manifest necessity”
standard does not apply.78 In those cases, the law assumes that the
defendant has maintained control over the course of the proceedings by
exercising his right to a mistrial.79 This is true even though the
72
73
74
75
Id. at 580.
Id.
Perez, 22 U.S. at 580.
Id. (“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 . . . upon the responsibility of the Judges . . . .”).
76 See United States v. Dinitz, 424 U.S. 600 (1976) (applying test to case of mistrial after
defense counsel’s exclusion from the courtroom); United States v. Jorn, 400 U.S. 470, 480 (1971)
(hypothesizing that manifest necessity test would govern mistrial following the sudden illness of
witnesses, parties, attorneys, or jurors); Wade v. Hunter, 336 U.S. 684 (1949) (retrial permitted
under manifest necessity after military court-martial discharged due to “tactical situation” in the
military operations); Thompson v. United States, 155 U.S. 271 (1894) (manifest necessity test
applied and retrial permitted after jury discharged because one juror had served on grand jury
indicting defendant); Logan v. United States, 144 U.S. 263 (1892) (applying test and permitting
subsequent trial where jury discharged after forty hours of deliberation with no verdict); Simmons
v. United States, 142 U.S. 148 (1891) (applying manifest necessity test and permitting subsequent
trial after mistrial declared because letter published in newspaper rendered juror’s impartiality
doubtful). See generally Double Jeopardy, supra note 12 (describing history of double jeopardy
protection and the problem of attempting to retry a defendant following a botched trial).
77 See, e.g., Wade, 336 U.S. at 689 (stating that if the Double Jeopardy Clause were absolute
in its application, “the purpose of law to protect society from those guilty of crimes frequently
would be frustrated by denying courts power to put the defendant to trial again”).
78 See Dinitz, 424 U.S. at 610.
79 Id. at 608-09; see also Oregon v. Kennedy, 456 U.S. 667, 672 (1982) (“But in the case of a
mistrial declared at the behest of the defendant . . . the defendant himself has elected to terminate
the proceedings against him, and the ‘manifest necessity’ standard has no place in the application
of the Double Jeopardy Clause.”).
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defendant usually faces a “Hobson’s choice” in exercising the
decision—that is, he must either relinquish his right to a verdict by the
first jury or his right to a trial free of error.80
The Supreme Court has at times struggled with the question of how
to apply the “manifest necessity” standard in cases of “prosecutorial
overreaching.”81 That is, in some cases, a prosecutor’s malfeasance will
constitute the underlying cause of the mistrial, which raises the question
of whether the malfeasance suffices to trigger double jeopardy
protection.82 In United States v. Dinitz,83 the Court held that the Double
Jeopardy Clause is triggered when the government intends to provoke
the defendant into moving for a mistrial.84 The Court also stated that
the Clause bars retrials where “bad-faith conduct” by a judge or
prosecutor causes harassment of an accused. “Bad faith conduct” can
include successive prosecutions or a declaration of a mistrial so as to
afford the prosecution a more favorable opportunity to convict the
defendant.85
However, in Oregon v. Kennedy,86 the Court narrowed the scope of
this exception for prosecutorial “overreaching.”87 In Kennedy’s trial for
theft, the government called an expert witness to testify as to the value
of property that Kennedy allegedly stole.88 After the witness testified
that he had never done business with the defendant, the prosecutor
asked, “Is that because he is a crook?”89 As a result of the improper
question, the trial court then granted the defendant’s motion for a
mistrial.90 The defendant was tried a second time and convicted, but the
Oregon Court of Appeals reversed.91 The court held that the Double
Jeopardy Clause barred the second trial, for even if the prosecutor did
not intend to cause the defendant to move for a mistrial, prosecutorial
misconduct had caused the need for one.92 The Oregon court relied on
80 Dinitz, 424 U.S. at 609. For an alternative view of this question, see the overturned Court
of Appeals decision in the same case. United States v. Dinitz, 504 F.2d 854 (5th Cir. 1974).
81 See, e.g., Dinitz, 424 U.S. at 607-09.
82 See, e.g., id.; see also Kennedy, 456 U.S. at 667.
83 424 U.S. 600 (1976).
84 Id. at 611. The Court did not find that intent in Dinitz, where the trial judge had expelled
one of the attorneys for the defendant from the courtroom, prompting the defense to move for a
mistrial. Id. at 604-05.
85 Id.
86 Kennedy, 456 U.S. at 667. For more on the background of Kennedy, see James F.
Ponsoldt, When Guilt Should Be Irrelevant: Government Overreaching as a Bar to Reprosecution
Under the Double Jeopardy Clause After Oregon v. Kennedy, 69 CORNELL L. REV. 76 (1983).
87 In the Court’s words, it “delineate[d] the bounds of that exception more fully.” Kennedy,
456 U.S. at 673.
88 Id. at 669.
89 Id.
90 Id.
91 Id. at 668-69.
92 Id. at 670-71.
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the “bad faith” and “harassment” language of Dinitz to hold that such
prosecutorial “overreaching” triggered double jeopardy protection.93
The Supreme Court, however, reversed, holding that no double
jeopardy protection had attached.94 The Court recognized that earlier
cases had suggested an exception to the “manifest necessity” doctrine
that would allow for double jeopardy protection after prosecutorial
misconduct that triggers a defense motion for a mistrial.95 However,
five justices adopted the view that the exception was not so broad;
instead, they held that a defendant who successfully moves for a
mistrial may only invoke double jeopardy protection against a second
trial when the conduct giving rise to the motion was intended to “goad”
the defendant into moving for a mistrial.96
The majority relied on the notion that a motion for a mistrial
constitutes “a deliberate election” by the defendant to forgo the right to
a verdict in the court in the original trial.97 Under the Kennedy
approach, for purposes of the Double Jeopardy Clause, the critical
question is whether the defendant “retain[ed] primary control over the
course to be followed in the event of such error.”98 The Court rejected
the idea that the Double Jeopardy Clause applied because the situation
presented the defendant with a “Hobson’s choice.”99 While the Court
agreed that the defendant’s choice in the matter was largely an illusory
one, it held that no jeopardy ought to attach because the prosecutor
suffers “substantial costs” no matter which choice the defendant
makes.100
Justice Stevens, writing for himself and three other justices,101
concurred in the judgment but vehemently disagreed with the Court’s
announced doctrinal shift.102 Justice Stevens agreed that a prosecutor
asking an inappropriate question was not the kind of action identified in
the precedent cases as the type of prosecutorial misconduct that
93
94
95
96
Id. at 674.
Id. at 679.
Id. at 678-79.
Id. The distinction is a critical one. Under a broad reading of Dinitz, anytime a prosecutor
committed gross malfeasance that resulted in a mistrial, the Double Jeopardy Clause would bar a
second trial. However, by limiting the protections of the Double Jeopardy Clause in cases of
prosecutorial misconduct to those where the prosecutor “goads” the defendant into moving for a
mistrial, the Court limited such protection to cases where it can be shown that a prosecutor’s
specific intent was to produce a mistrial. See id.
97 Id. at 676 (citing United States v. Scott, 437 U.S. 82, 93 (1978)).
98 Id. (citing Dinitz, 424 U.S. at 609).
99 Id. at 686.
100 Id. (“If the defendant consents to a mistrial, the prosecutor must go to the time, trouble, and
expense of starting all over with the criminal prosecution. If the defendant chooses to continue
the proceeding and preserve his objection for appeal, the prosecutor must continue to completion
a proceeding in which a conviction may not be sustainable.”).
101 Justices Brennan, Marshall, and Blackmun joined Stevens’ opinion. Id. at 681.
102 See id.
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triggered double jeopardy protection. Yet rather than reaching that
result under the existing jurisprudence, Justice Stevens wrote, the Court
had “lop[ped] off” part of the previously recognized exception, at the
expense of the purposes underlying the Double Jeopardy Clause.103
Since Kennedy was decided, some courts have attempted to craft a
broader conception of the Double Jeopardy Clause in cases of
prosecutorial misconduct. Indeed, at least one federal circuit court has
gone much further doctrinally than Kennedy would seem to permit. In
United States v. Wallach,104 the Court of Appeals for the Second Circuit
considered the scope of the Double Jeopardy Clause in a case where the
prosecutor was alleged to have solicited untruthful testimony about the
defendant during trial.105 In its discussion of the Double Jeopardy
Clause, the court extrapolated beyond the language of Kennedy. The
court reasoned that “the Supreme Court might think” that the Double
Jeopardy Clause also bars a retrial in other circumstances where
prosecutorial misconduct is undertaken with the intention of denying the
defendant an opportunity to win an acquittal, even if the prosecutor had
no specific intent to goad the defendant into moving for a mistrial.106
According to the court, if the Double Jeopardy Clause bars a retrial
where a prosecutor commits an act of misconduct with the intention of
provoking a mistrial motion by the defendant, the Clause also bars a
retrial where the prosecutor commits grave misconduct with the intent
to avoid an acquittal he believes is likely, because the defendant suffers
the same harm in both cases.107
The Second Circuit did not apply the extended double jeopardy
protection in the underlying case, because there was no showing that the
misconduct on the part of the prosecution was intentional.108 The
Supreme Court declined to review the case, and has thus far not taken
the opportunity to accept or reject the Second Circuit’s reasoning.109
Nevertheless, many courts have referred to the reasoning of
Wallach when analyzing issues under the Double Jeopardy Clause, and
some have explicitly adopted the proposed rule.110 Several subsequent
103 Id. at 681-82. Justice Stevens characterized the policies underlying the Double Jeopardy
Clause as the defendant’s interest in finality and in having his guilt or innocence adjudicated in
one proceeding. Id. For additional criticism of the Kennedy approach, see Ponsolt, supra note
86, at 100 (concluding “[t]o the extent that Oregon v. Kennedy permits courts to consider only a
nebulous intent by the prosecutor to provoke a mistrial, it will cause widely disparate results in
apparently similar situations and perhaps ultimately might lead to a de facto judicial repeal of the
double jeopardy clause. The Court should reconsider its decision.”).
104 979 F.2d 912 (2d Cir. 1992).
105 Id. at 914.
106 Id. at 916.
107 Id.
108 Id. at 917 (“There was no determination that the prosecutors had actual knowledge.”).
109 See United States v. Wallach, 508 U.S. 939 (1993).
110 See, e.g., State v. Marti, 784 A.2d 1193 (N.H. 2001) (agreeing that the rule announced in
Wallach is a logical extension of Kennedy, but finding the rule inapplicable in the instant case);
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cases have referenced the reasoning in Wallach, but have gone on to
find it inapplicable because of the specific facts of the case in
question.111 The expanded rule has been applied to bar retrial in some
instances.112 In a subsequent case, the Second Circuit affirmed its
extension of Kennedy, reiterating the notion that Double Jeopardy
Clause protects a defendant from successive prosecutions for the same
offense that arise from “prosecutorial overreaching” when the
prosecutor intends to deprive him of having his trial completed by a
particular tribunal or when the prosecutor “prejudice[s] the possibility
of an acquittal that the prosecutor believed likely.”113 Many other
circuits have rejected the Wallach test.114 Yet at least one other circuit
has adopted Wallach’s reasoning.115
C.
Double Jeopardy Following Reversal on Appeal
Another general exception to the Constitution’s double jeopardy
prohibition applies to cases in which the government seeks to retry a
defendant who is convicted but obtains a reversal of the conviction on
appeal. In those cases, the law has long allowed a retrial.116 The
justification for this exception is largely pragmatic—while the
defendant has a right to be free of double jeopardy and a right to a fair
trial, there would be “a high price indeed for society to pay” if every
defendant who demonstrated error in his original trial were set free.117
see also State v. Colton, 663 A.2d 339, 347 (Conn. 1995) (“We can see no principled justification
for a distinction between prosecutorial misconduct that is clandestine, and therefore not
discoverable until after a verdict or an appeal, and prosecutorial misconduct that is visible, and so
can be remedied by a motion for mistrial or on direct appeal.”).
111 See, e.g., United States v. Gary, 74 F.3d 304, 315 (1st Cir. 1996) (holding that no deliberate
prosecutorial misconduct existed after the first trial ended in a hung jury); United States v.
Pavloyianis, 996 F.2d 1467, 1473-75 (2d Cir. 1993) (concluding that no prosecutorial misconduct
existed to warrant an expansion of Kennedy as suggested in Wallach); People v. Batts, 68 P.3d
357 (Cal. 2003) (California Supreme Court adopting the reasoning of Wallach but not applying it
in a case where prosecutorial misconduct resulted in a reversal on appeal, not a mistrial.).
112 See, e.g., Colton, 663 A.2d at 339 (calling the extension justified only in rare
circumstances, but finding such circumstances in the instant case).
113 Pavloyianis, 996 F.2d at 1473.
114 See United States v. McAleer, 138 F.3d 852, 854 (10th Cir. 1998) (no double jeopardy
protection after prosecutor improperly asked co-conspirator if she remembered “taking the Fifth
Amendment 41 times” during earlier proceedings); United States v. Doyle, 121 F.3d 1078, 1087
(7th Cir. 1997) (no double jeopardy protection after alleged violations of Brady as extended in
Giglio v. United States, 405 U.S. 150 (1972), which requires prosecutors to provide the defense
with evidence relating to the credibility of prosecution witnesses.).
115 See Jacob v. Clarke, 52 F.3d 178, 182 (8th Cir. 1995) (declining to apply Wallach because
of factual distinctions in case where error had resulted in improper admission of eyewitness
identification in murder trial).
116 See United States v. Ball, 163 U.S. 662 (1896) (holding that defendants could be retried
after reversal on appeal for a faulty indictment).
117 United States v. Tateo, 377 U.S. 463, 466 (1964) (“Corresponding to the right of an
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However, despite this exception to the Double Jeopardy Clause’s
protection, there is at least one exception under which retrial will be
barred following a defendant’s successful appeal. That exception
governs cases in which the basis for setting aside the prior conviction
was a finding that the government’s evidence was insufficient or the
facts alleged were insufficient to constitute the crime charged.118 The
exception derives from a fundamental principle of double jeopardy
protection: that a finding of insufficient evidence—whether by judge or
jury—precludes a retrial, in order to prevent the state from retrying a
defendant as many times as it takes to find a jury that will convict.119
III. DOUBLE JEOPARDY BARS A SUBSEQUENT TRIAL
FOLLOWING BRADY VIOLATIONS
A.
Severe Prosecutorial Misconduct Implicates the Important
Policies Underlying the Double Jeopardy Clause
When a prosecutor proceeds to trial withholding evidence
exculpatory to the accused under the Brady doctrine, a subsequent trial
ought to be barred by the Double Jeopardy Clause.120 The prohibition
against double jeopardy was intended to protect an individual from
being subjected to multiple trials for the same offense, given the
inherent inequities in doing so.121 These inequities include the
humiliation, costs, and personal stresses of multiple criminal trials, and
accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he
was obtained such a trial. It would be a high price . . . for society to pay were every accused
granted immunity from punishment because of any defect sufficient to constitute reversible error
in the proceedings leading to conviction.”).
118 See United States v. Martin Linen Supply Co., 430 U.S. 564 (1977); Fong Foo v. United
States, 369 U.S. 141 (1962).
119 See United States v. Scott, 437 U.S 82 (1978) (“Perhaps the most fundamental rule in the
history of double jeopardy jurisprudence has been that ‘[a] verdict of acquittal . . . could not be
reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby
violating the Constitution.’”) (quoting Ball, 163 U.S. at 671); see also Green v. United States, 355
U.S. 184, 188 (1957).
120 This argument may, of course, apply in cases involving prosecutorial misconduct of
different types. For an argument that the Double Jeopardy Clause should bar a retrial after the
prosecutor has conspired to submit false evidence, see Rick A. Bierschbach, Note, One Bite at the
Apple: Reversals of Convictions Tainted by Prosecutorial Misconduct and the Ban on Double
Jeopardy, 94 MICH. L. REV. 1346 (1996). The standard Bierschbach puts forth would ostensibly
not be met by many Brady-type violations, for it requires a showing that the prosecutor
intentionally introduced tainted evidence at trial. Id. at 1347. In contrast, a Brady violation
occurs when a prosecutor fails to disclose exculpatory evidence, regardless of what evidence the
prosecutor introduces at trial.
121 See Charles L. Cantrell, Double Jeopardy and Multiple Punishment: An Historical and
Constitutional Analysis, 24 S. TEX. L.J. 735, 771 (1983) (calling Double Jeopardy Clause a
“shield against governmental tyranny”).
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more importantly, an increase in the probability that the defendant will
be wrongfully convicted.122 The protections underlying the Clause are
so weighty that the Supreme Court has recognized that the Clause
becomes operative even before either attorney has so much as uttered a
single word in the course of the trial.123
The Supreme Court has recognized that when a prosecutor directly
“goads” a defendant into moving for a mistrial—that is, where it is
shown that a prosecutor’s objective in committing misconduct was to
cause a mistrial—the Double Jeopardy Clause bars a second trial.124
That same result should occur when a mistrial is declared following the
revelation that the prosecutor has withheld evidence that meets the
Brady standard for exculpatory evidence.125 When a prosecutor
commits a Brady violation, he is, at a minimum, consciously
disregarding the substantial risk that a mistrial will result, even though
he is well aware of the burdens that a second trial would place on the
accused.126 Under current law, a prosecutor who seeks to withhold
exculpatory evidence has the security that he can always get two bites at
the apple.127 If the prosecutor is fortunate enough not to get caught, he
secures a conviction. If the prosecutor does get caught and the Double
Jeopardy Clause does not apply, the defendant must suffer the evil the
Clause is designed to remedy—to stand trial twice for the same crime—
122 Green, 355 U.S. at 187-88. The Court in Green states that the purpose of the Double
Jeopardy Clause:
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.
Id.
123 See United States v. Sanford, 429 U.S. 14, 15 (1976).
124 See Oregon v. Kennedy, 456 U.S. 667 (1982).
125 See supra Part I.
126 A Brady violation may be found regardless of the prosecutor’s intent. See supra Part I. It
is difficult to image a case of a purely “negligent” Brady violation, that is, one in which the
prosecutor was not even aware of the risk that he was failing to disclose evidence. Brady imposes
a requirement on prosecutors that they be diligent in determining what evidence is in their
possession. See United States v. Agurs, 427 U.S. 97, 110 (1976) (“If evidence highly probative
of innocence is in his file, [the prosecutor] should be presumed to recognize its significance even
if he has actually overlooked it.”). Thus, it would be difficult for a prosecutor to argue she was
truly unaware of the risk that she held exculpatory evidence. Thus, nearly every imaginable
Brady violation would seem to fall outside the rule that a trial terminated due to uncontrollable
events does not trigger Double Jeopardy protection. See infra note 139 and accompanying text.
That is to say, nearly all Brady violations could be prevented by diligence on a prosecutor’s part,
so there are few Brady violations that are truly uncontrollable events.
127 See Burks v. United States, 437 U.S. 1, 17 (1978) (“the purposes of the Clause would be
negated were we to afford the government an opportunity for the proverbial ‘second bite at the
apple.’”). In the case of a Brady violation, the defendant’s remedy is generally a new trial. See,
e.g., United States v. Lewis, 368 F.3d 1102 (9th Cir. 2004). Accordingly, the state will obtain
another chance to try the defendant.
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while the prosecutor is no worse off than if he had abided by the
Constitution in the first place.128
The Supreme Court has recognized that in many cases where a trial
was found to contain “error,” it would be substantially unfair to deny
society another attempt to convict the defendant.129 In support of this
contention, the Supreme Court has often referred to the unpredictability
and happenstance inherent in a jury trial system.130 Yet when a
prosecutor conceals exculpatory evidence or disregards a substantial
risk that he is doing so, the situation is vastly different. In such a case,
the prosecutor can reasonably foresee that the defendant may be forced
to stand trial twice. Under the rule set out in Kennedy, the prosecutor
violates the Double Jeopardy Clause when he has a specific intent to
cause a mistrial, purportedly to avoid an acquittal.131 In the case where
a prosecutor proceeds to trial in violation of Brady, the prosecutor still
subjects the defendant to the identical risk of mistrial, with the intent of
securing a conviction.132 There should be no distinction between these
two situations. The defendant suffers the same constitutional injury
whether the prosecutor commits gross misconduct with the intent to
violate the Double Jeopardy Clause or when the prosecutor commits
gross misconduct that he knows is likely to violate the Double Jeopardy
Clause.133 In both instances, the prosecutor places the defendant’s
double jeopardy rights at risk, and in both instances the prosecutor sets
128 This directly implicates the “harassment” concerns underlying the Double Jeopardy Clause.
See Monroe G. McKay, Double Jeopardy: Are the Pieces the Puzzle?, 23 WASHBURN L.J. 1, 18
(1983) (calling “core value” of the Double Jeopardy Clause the desire to protect the individual
from the governmental use of the criminal justice system to harass and oppress).
129 See Burks v. United States, 437 U.S. 1, 9 (1978); United States v. Ball, 163 U.S. 662, 672
(1896).
130 See, e.g., United States v. Jorn, 400 U.S. 470, 480 (1971).
131 Oregon v. Kennedy, 456 U.S. 667 (1982).
132 See United States v. Wallach, 979 F.2d 912 (2d Cir. 1992).
133 This reinforces an additional problem with the Kennedy approach to intent: it is very
difficult for courts to adjudicate the subjective desires of an individual prosecutor. See Peter J.
Henning, Prosecutorial Misconduct and Constitutional Remedies 77 WASH. U. L.Q. 713, 804-05
(1999), observing:
When a prosecutor pushes the limits of the rules, is she trying to provoke a mistrial or
just win a conviction? As the Court in Kennedy observed, all prosecutorial acts at trial
are designed to prejudice the defendant, in the sense of making a conviction more
likely. Therefore, a prosecutor can always argue that improper acts were designed to
convict the defendant rather than to provoke a mistrial, even if the prosecutor
acknowledges that pursuing a course of action increased the risk of a mistrial. A
double jeopardy claim under Kennedy usually will involve an underlying violation of
proper trial or evidentiary procedures that caused a court to order a mistrial on the
defendants motion, such as a prosecutor’s attempt to use otherwise inadmissible
evidence or to advance an unjustified argument. Yet those acts, standing alone, do not
show any specific intent to goad the defendant into requesting a mistrial because they
are means, albeit impermissible ones, to secure a conviction.
Id. (internal citations omitted).
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out to violate a fundamental constitutional right belonging to the
defendant.134
Courts should distinguish between a mistrial arising because of
simple error or an unforeseen event forcing the cancellation of the trial,
and a situation in which the prosecutor sets out on a course of gross
malfeasance that subjects the defendant to the risk of multiple trials.
This dichotomy is apparent from examining the significance of the
Brady rule and the impact that violating Brady has on the criminal
justice system. There is little discovery in criminal litigation.135 As
Justice Brennan noted, the fundamental purpose of permitting the
criminal defendant to engage in some pretrial discovery of the
prosecution’s case is to enhance the probability that truth will emerge
and minimize the danger that an innocent defendant will be
convicted.136 The Brady rule assumes that the defendant will receive a
fairer trial when he is well informed of the evidence before trial, rather
than the situation in which the government can engage in a “gotcha”
version of justice.137 Given the importance of the rule, a prosecutor who
sets out to violate it or ignores the substantial likelihood of a violation
does so with a clear understanding of the consequences.
Moreover, Brady stands at odds with the traditional notion that a
defendant who moves for a mistrial still retains control over the
proceedings, and therefore is not entitled to double jeopardy
protection.138 Brady recognized that a prosecutor who suppresses
exculpatory evidence takes the “role of an architect of a proceeding that
does not comport with standards of justice.”139 Thus, Brady itself rebuts
134
As the Michigan Court of Appeals put it:
The purpose of the Double Jeopardy Clause is not to penalize the state, but to protect
individuals against prosecutorial harassment. Such harassment can rise not only when
a prosecutor intentionally provokes a mistrial, but can also arise when the prosecutor
willingly and consciously engages in conduct which he knows is prejudicial, and which
cannot be cured by means short of a mistrial, even if he is indifferent to the probability
of a mistrial. Under either circumstance, the result is that prosecutorial impropriety
forces the defendant to choose between completing a tainted trial or aborting it. In
either situation, the burden of a second trial is not attributable to the defendant’s
preference for a new trial, but to the state’s readiness to force him to make that choice.
People v. Dawson, 397 N.W.2d 277, 282 (Mich. Ct. App. 1986) (suggesting Double Jeopardy
Clause has greater scope than Supreme Court gave it in Kennedy). The Michigan appellate court
was later overturned by the Michigan Supreme Court, which said that any extension of Kennedy
must come from the Supreme Court itself. See People v. Dawson, 427 N.W.2d 886 (Mich. 1988).
135 See supra note 67.
136 William J. Brennan, The Criminal Prosecution: Sporting Event or Question for Truth? A
Progress Report, 68 WASH U. L.Q. 1, 2 (1990).
137 See id. at 3; see also Roger J. Traynor, Ground Lost and Found in Criminal Discovery, 39
N.Y.U. L. REV. 228, 249 (1964) (“the truth is most likely to emerge when each side seeks to take
the other by reason rather than by surprise”); United States v. Procter & Gamble Co., 356 U.S.
677, 682 (1958) (discovery methods “make a trial less a game of blind man’s bluff and more a
fair contest with the basic issues and facts disclosed to the fullest practicable extent”).
138 See supra note 79 and accompanying text.
139 Brady v. Maryland, 373 U.S. 83, 88-89 (1963).
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the notion that double jeopardy protection is not applicable because the
defendant still retained control. When it comes to making decisions
within the criminal justice system, the Constitution requires informed,
voluntary consent, free of coercion.140 A defendant who learns that the
prosecutor hid evidence that could exonerate him has little effective
choice but to move for a mistrial.141 In Kennedy, the Court rejected the
idea that the Double Jeopardy Clause applied because the situation
presented the defendant with a “Hobson’s choice,” reasoning that the
prosecutor suffers “substantial costs” no matter which choice the
defendant makes.142 However, this rationale should not act to prevent
the Double Jeopardy Clause from taking effect.143 The Clause was
designed to safeguard the defendant, not to punish the prosecutor.144
Therefore, the Double Jeopardy Clause’s mandate is not vindicated
merely because the prosecutor has suffered some hardship. Moreover,
it can be said that the government actually suffers no hardship anyway;
if a prosecutor sets out to hide evidence and succeeds in obtaining a
conviction, he wins. If the prosecution fails to hide evidence, it simply
gets the fair trial it would have in the first instance.
The tenuousness of the Court’s existing jurisprudence in this area
is also apparent when one compares the facts underlying Kennedy and a
situation in which a prosecutor conceals evidence to the point that it
would cause a judge to have reasonable doubt as to the defendant’s
guilt. In Kennedy, the conduct alleged to constitute prosecutorial
misconduct consisted of the prosecutor asking one improper question to
a witness.145 Yet the decision has subsequently been invoked to cover
any situation in which prosecutorial misconduct is alleged, even one as
140 While it occurs in another context, the requirements of Miranda v. Arizona, 384 U.S. 436
(1966) and Edwards v. Arizona, 451 U.S. 477 (1981), demonstrate the lengths to which the
Supreme Court has gone to protect the voluntariness of a waiver of rights in the context of selfincrimination. Edwards held that after a defendant has invoked his right to have counsel present
during interrogation, a valid waiver of that right cannot be established by showing that he
responded to police-initiated questioning after being again advised of his rights, because of the
need for “additional safeguards.” Edwards, 451 U.S. at 484.
141 While the defendant could conceivably decide to continue with the trial, there are several
problems with this approach. For one, it is questionable whether the prosecutor could or should
be able to continue prosecuting the case. Moreover, knowledge of significant exculpatory
evidence would likely shape the defendant’s entire trial strategy, making the evidence of far less
value in the present trial.
142 Oregon v. Kennedy, 456 U.S. 667, 686 (1982):
If the defendant consents to a mistrial, the prosecutor must go to the time, trouble, and
expense of starting all over with the criminal prosecution. If the defendant chooses to
continue the proceeding and preserve his objection for appeal, the prosecutor must
continue to completion a proceeding in which a conviction may not be sustainable.
Id.
143 For a criticism of the “voluntariness” of this decision, see Stephen J. Schulhofer, Jeopardy
and Mistrials, 125 U. PENN. L. REV. 449 (1977).
144 See People v. Dawson, 397 N.W.2d 277 (Mich. Ct. App. 1986).
145 Kennedy, 456 U.S at 667.
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significant as an intentional Brady violation.146 An improper question is
of a much lesser magnitude than the suppression of evidence that could
exonerate the accused. The two situations are vastly different, both in
terms of the maliciousness and intent of the act, as well as in the risk
that the prosecutor’s misconduct will subject the defendant to multiple
trials, or possibly even to wrongful conviction.
When Justice Story set out the original exception to the Double
Jeopardy Clause in Perez, he cautioned that the power to retry a
defendant was to be exercised only with great caution under “urgent”
circumstances.147 Whether or not the Court has been cautious is open to
debate. At a minimum, Kennedy, which dealt with the case of a single
improper question asked by the prosecutor,148 is an inadequate
explanation of how the Double Jeopardy Clause should operate in cases
of gross prosecutorial misconduct such as a Brady violation. Moreover,
Kennedy, which controls double jeopardy analysis in all cases of
prosecutorial misconduct, constituted more of a debate over what prior
case law had held than a reasoned discussion of what the text of the
Constitution requires.149 Many courts have therefore set out to craft a
broader exception to the general rule than the Court allowed in
Kennedy.150
B.
Society Has an Interest in Prosecutors Meeting
Criminal Discovery Obligations
The rule that a defendant whose trial is aborted may face retrial
derives from the need to balance society’s interest with that of the
defendant’s.151 In cases of gross prosecutorial misconduct like an
intentional Brady violation, courts should recognize that society also
has an interest in seeing that prosecutors meet their discovery
obligations. Brady set out a fundamental rule of criminal procedure,
and since Brady was decided, the Supreme Court has reiterated that it
146
147
See, e.g., United States v. Lewis, 368 F.3d 1102, 1104 (9th Cir. 2004).
United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824):
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.
148
149
150
See supra note 90 and accompanying text.
See Kennedy, 456 U.S. at 677.
See United States v. Pavloyianis, 996 F.2d 1467, 1473-75 (2d Cir. 1993); United States v.
Wallach, 979 F.2d 912 (2d Cir. 1992); State v. Marti, 784 A.2d 1193 (N.H. 2001); State v.
Colton, 663 A.2d 339 (Conn. 1995).
151 See Perez, 22 U.S. at 579.
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announced a due process requirement.152 Brady is a unique requirement
that stands at odds with traditional notions of how the adversary system
should function.153 The Court has justified such a departure because the
law views a prosecutor as more than a mere adversary in the system.154
Rather, he “is the representative not of an ordinary party to a
controversy, but of a sovereignty . . . whose interest . . . in a criminal
prosecution is not that it shall win a case, but that justice shall be
done.”155
In weighing the “public interest” factor of double jeopardy
analysis, courts should consider the need for incentives that encourage
ethical conduct by prosecutors. There exist few, if any, sanctions
against a prosecutor’s intentional violation of the Brady rule. Courts
generally hold that a prosecutor’s decision not to preserve or disclose
exculpatory material constitutes an exercise of the “prosecutorial
function” and therefore entitles the prosecutor to absolute immunity
from a civil suit for damages.156 Ethical sanctions against prosecutors
have been applied only rarely.157 In a survey of attorney disciplinary
bodies of all fifty states and the District of Columbia, the results
revealed that disciplinary charges have been brought infrequently and
that “meaningful” sanctions are rarely assessed in cases of
nondisclosure of evidence by prosecutors.158 Moreover, other sanctions
152
153
See United States v. Bagley, 473 U.S. 667, 675 (1985).
The traditional adversary model does not assume that either party has any obligation to
assist the other in contesting the facts. See id. at 675 n.6.
154 Id. at 675.
155 Id. (quoting Berger v. United States, 295 U.S. 78 (1935)); see also Brady v. Maryland, 373
U.S. 83, 87-88 (1963).
156 See Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003); see also Long v. Satz, 181 F.3d
1275, 1279 (11th Cir.1999) (per curiam) (given that “[t]he task of evaluating the credibility of the
alleged exculpatory information, and of determining its bearing on the trial and the prosecutor’s
decision whether to confess error and agree to have the verdict set aside, no doubt requires the
exercise of prosecutorial discretion” a prosecutor is protected by absolute immunity for the failure
to turn over exculpatory evidence that was discovered shortly after the defendant was sentenced);
Ybarra v. Reno Thunderbird Mobile Home Vill., 723 F.2d 675, 679 (9th Cir. 1984) (district
attorney’s duty to preserve exculpatory evidence “would arise from his role as an officer of the
court charged to do justice. An act or an omission concerning such a duty cannot be construed as
only administrative or investigative; it too is necessarily related to [the prosecutor’s] preparation
to prosecute”) (internal citations omitted); Fullman v. Graddick, 739 F.2d 553, 559 (11th Cir.
1984) (“[t]he district court properly dismissed plaintiff’s claims that [the prosecutor] conspired to
withhold evidence and to create and proffer perjured testimony”); Prince v. Wallace, 568 F.2d
1176, 1178-79 (5th Cir.1978) (per curiam) (immunity applies to a prosecutor’s “initiating and
pursuing a criminal prosecution and in presenting the state’s case . . . even where the prosecutor
knowingly used perjured testimony, deliberately withheld exculpatory information, or failed to
make full disclosure of all facts”).
157 See Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A
Paper Tiger, 65 N.C. L. REV. 693, 732 (1987).
158 Id.
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for Brady-type misconduct, such as office-level discipline, removal
from office, or citation for contempt, are rarely imposed.159
The need to deter constitutional violations is a familiar precept of
constitutional criminal procedure.
It underlies the idea of the
exclusionary rule160 central to Fourth Amendment jurisprudence.161
Expanding the scope of the Kennedy mistrial rule to include cases of
Brady violations would also have the added benefit of deterring
violations in the first place. Since Brady violations inherently deal with
concealment, the need to deter them is very important, because there is
a high probability that they will never be discovered. As noted, the
Brady doctrine now covers only evidence so significant as to make a
difference in the verdict.162 When a prosecutor conceals such evidence,
there is a greatly increased chance that an innocent defendant will be
convicted.163 Our criminal justice system gives the accused the benefit
of the presumption of innocence and requires the state to prove each of
the charges against him beyond a reasonable doubt.164 Accordingly, the
justice system must encourage the revelation of any evidence that could
exonerate the accused. The rogue prosecutor who hides exculpatory
evidence generally does so because of a desire to win at trial.165 A
penalty that could result in the defendant never being convicted would
motivate such a prosecutor to comply with Brady.
The Perez balancing approach assumes that courts must balance
the Double Jeopardy Clause with society’s need to convict the guilty. It
is certainly true that society pays a high price when “[t]he criminal is to
go free because the constable has blundered,”166 as Justice Cardozo
famously put it, regardless of whether the culpable actor is a constable
or a prosecutor. However, that consideration is lessened in the case of a
true Brady violation. Given the high standard of materiality required
under Brady, only evidence sufficient to alter the verdict comes within
the rule’s ambit.167 Accordingly, a judge who determines that a Brady
violation has occurred has already reduced the probability that society
159
160
See id.
The exclusionary rule generally forbids courts from admitting evidence obtained in
violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures. See
United States v. Weeks, 232 U.S. 383 (1914).
161 See United States v. Leon, 468 U.S. 897, 906 (1984) (holding the exclusionary rule acts as
a “a judicially created remedy designed to safeguard Fourth Amendment rights generally through
its deterrent effect, rather than a personal constitutional right of the party aggrieved”).
162 Constitutional error will be found to exist only if the omitted evidence creates a reasonable
doubt that did not exist without the evidence. United States v. Agurs, 427 U.S. 97, 112 (1976).
163 See Brennan, supra note 136.
164 Agurs, 427 U.S. at 112; see also In re Winship, 397 U.S. 358 (1970) (holding proof beyond
a reasonable doubt is a requirement of due process).
165 See United States v. Doyle, 121 F.3d 1078, 1087 (7th Cir. 1997).
166 People v. Defore, 150 N.E. 585, 587 (N.Y. 1926).
167 See Strickler v. Greene, 527 U.S. 263 (1999) (describing the high materiality standard now
imposed on Brady claims).
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will pay the price of allowing a guilty individual to go free, for implicit
in a finding of a significant reduction is the probability that a defendant
is guilty.168
Moreover, there is another overriding consideration in the balance
between society’s rights and the defendant’s: the “imperative of judicial
integrity.”169 As Justice Brandeis argued in his dissent in Olmstead v.
United States:170
Our government is the potent, the omnipresent teacher. For good or
for ill, it teaches the whole people by its example. . . . If the
government becomes a lawbreaker, it breeds contempt for law; it
invites every man to become a law unto himself; it invites
anarchy.171
C.
Jeopardy Should Attach After An Intentional Brady
Violation Is Found on Appeal
An expanded remedy under the Brady rule should not be limited
solely to cases resulting in mistrial. When a defendant has already been
convicted and a Brady violation is revealed on appeal or collateral
attack, the Double Jeopardy Clause ought to nevertheless bar a
subsequent trial.
The general rule is that an individual may be tried twice for an
offense where his prior conviction for that same offense has been setaside on appeal.172 Such a rule recognizes that society would pay a high
price were the accused is granted immunity from punishment because of
a defect sufficient to constitute reversible error in the proceedings
leading to conviction.173 However, the Supreme Court has crafted an
exception to this rule. In cases where a defendant successfully
challenges his conviction for insufficiency of the evidence, the Double
Jeopardy Clause bars a subsequent retrial.174 The Court justified this
exception in part because in such cases the prosecution cannot complain
of prejudice, for it had the opportunity to offer whatever proof it could
assemble and because such an appellate reversal signifies that the
prosecution’s case was deficient to the point that it should not have been
168
169
170
See id.
Mapp v. Ohio, 367 U.S. 643 , 659 (1961) (citation omitted).
Olmstead v. United States, 277 U.S. 438 (1928). Justice Brandeis’ approach was later
adopted by the Court. See Katz v. United States, 389 U.S. 347 (1967) (non-physical government
surveillance of telephone call constitutes a search under the Fourth Amendment).
171 Olmstead, 277 U.S. at 485 (Brandeis, J., dissenting).
172 See Burks v. United States, 437 U.S. 1, 9 (1978); United States v. Ball, 163 U.S. 662, 672
(1896).
173 United States v. Tateo, 377 U.S. 463, 466 (1964).
174 See Burks, 437 U.S. at 1.
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submitted to the jury.175 In the case of an intentional Brady violation,
the prosecution also cannot complain of prejudice. The prosecutor
made the decision to withhold material evidence from the defendant.
As the Brady Court put it, the prosecutor became the “architect” of the
defunct proceedings.176
Moreover, there is substantial similarity between a finding of
insufficient evidence and the finding of a Brady violation: the defendant
has stood trial once and because of intentional conduct entirely beyond
his control, he is then forced to stand trial again. Just as in a case where
a conviction is overturned for insufficiency of the evidence, a
conclusion that a prosecutor withheld evidence in violation of Brady
also necessarily implies that the evidence upon which the conviction
was based was incomplete as a matter of law.177 In order to constitute a
Brady violation, a defendant must show that had the evidence been
disclosed to the defense, the result of the proceeding would have likely
been different.178
If the Court does design a rule applying the Double Jeopardy
Clause after a mistrial is declared because of an intentional Brady
violation, there is no reason that the prosecutor’s success in committing
misconduct should afford him greater ability to prosecute again than
had the misdeed been revealed during trial. That is, all that would
distinguish such cases is the length of time for which the prosecutor was
able to conceal exculpatory evidence. The same double jeopardy
considerations apply, and thus the rule should be expanded to
encompass this situation.
The Double Jeopardy Clause, by its very nature, imposes a harsh
remedy on a society that seeks to vigorously prosecute criminals. Thus,
even in a case where the defendant is actually guilty, such a result may
sometimes be required, and in those cases, “the criminal goes free, if he
must, but it is the law that sets him free. Nothing can destroy a
government more quickly than its failure to observe its own laws, or
worse, its disregard of the charter of its own existence.”179
CONCLUSION
The Double Jeopardy Clause is ambiguous at best as to when it
ought to apply. Accordingly, courts should pay careful attention to the
175
176
177
Id. at 15.
Brady v. Maryland, 373 U.S. 83, 88-89 (1963).
Id. In the case of a Brady violation, the high standard of materiality necessarily implies
that there existed evidence sufficient to call an accused’s guilt into doubt.
178 Id.
179 Mapp v. Ohio, 367 U.S. 643, 659 (1961).
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policies underlying the Clause. Perhaps the most important policy is
one fundamental to our justice system: the imperative that the law not
convict an innocent person.180 In this sense, the Clause’s purpose
overlaps that of the Brady doctrine.181 The Supreme Court has
constantly cited the need to protect a defendant from being subjected to
multiple trials for the same offense, given the inherent inequities in
subjecting him to multiple trials.182 That is exactly what happens in
cases where a prosecutor proceeds to trial in violation of Brady.
Moreover, the notion that a defendant who moves for a mistrial
maintains any real control over the proceedings against him is hollow
and stands at odds with Brady.183 These realities require a new
approach to the problem of prosecutorial misconduct and Double
Jeopardy Clause analysis.
In United States v. Lewis,184 the Court never reached the question
of whether a true Brady violation had occurred, because on Lewis’
interlocutory appeal, the Court of Appeals for the Ninth Circuit
determined that even if such a violation did exist, it would not trigger
the protections of the Double Jeopardy Clause.185 Under the current
state of the law, had the Court found a Brady violation, Lewis would
have had no remedy at all; he had already been granted a new trial on
other grounds, and would have simply proceeded to the second trial.186
Even if the prosecutor did commit a Brady violation, Lewis would have
been forced to suffer the harms of the Double Jeopardy Clause by
standing trial again, and the government would have suffered no penalty
at all for its constitutional wrong. The Constitution cannot tolerate such
a result.
Prosecutors have a special duty within the criminal justice system.
They are not mere advocates; they are public advocates.187
Accordingly, a violation that rises to the level that Brady governs is
hopefully a rare event.188 Yet when a violation does occur, courts have
a duty to consider the double jeopardy implications, even if those
implications require that a defendant be set free, rather than face another
trial. After all, justice is not always derived from merely securing a
conviction. As it is written in an inscription on the walls of the
180
181
182
183
184
185
186
187
188
See Green v. United States, 355 U.S. 184, 187-88 (1957).
See United States v. Agurs, 427 U.S. 97, 112 (1976).
See supra note 112.
See supra note 32.
368 F.3d 1102 (9th Cir. 2004); see also Introduction.
Lewis, 368 F.3d at 1102.
See Introduction.
United States v. Bagley, 473 U.S. 667, 675 (1985).
See Scott E. Sundby, Fallen Superheroes and Constitutional Mirages: The Tale of Brady v.
Maryland, 33 MCGEORGE L. REV. 643 (2002) (“The Court . . . has defined ‘true’ Brady
[violations] in such a way that prosecutors in their daily practice should not be consistently
finding such material in the files of the cases that they are taking to trial.”).
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Department of Justice, “The United States wins its point whenever
justice is done its citizens in the courts.”189
189
Brady v. Maryland, 373 U.S. 83, 86 (1963).