CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, May 24, 2012

Opinion holding that double jeopardy clause does not bar retrial on greater offense after jury announces deadlock on lesser offense

Chief Justice Roberts wrote the opinion for the Court in Blueford v. Arkansas. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.

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This decision seems reasonable: there would have to be a firm acquittal or conviction of the offences to prevent an offender from being retried of those offences. All the offences related to a signal act--the killing of a child. The jury could not reach a resolution, but it did not acquit either. A firm acquittal was not returned. The double jeopardy rule should not be used as a technical instrument to allow a person to evade conviction for a serious offence where by his own admission he claims he did the act which caused V's death, as was the case in Blueford v. Arkansas. Blueford would had to have been re-tried on the lesser charges anyway, so it is not a misuse of state power to try all the offences again. The arguments for the double jeopardy rule are powerful, but a fair balance as to be struck.

Coupled with this, the Supreme Court's ruling seems more in line with modern movements on double jeopardy. In Britain, the legislature has gone much further and has allowed for retrials where new and compelling evidence emerges, and where the offence falls within a certain range of serious offences. For details, see the list I provide in Dennis J. Baker, Glanville Williams Textbook of Criminal Law, (Sweet & Maxwell, 2012) at page 90-93. Some states in Australia have also moved in this direction. What is wrong with retrying a rapist where DNA evidence comes forward which proves without doubt he was the one who raped X ten years before?

Posted by: Dennis J. Baker | May 25, 2012 2:47:15 AM

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