EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, October 12, 2010

Double Take: "The Good Wife" Gets Military Double Jeopardy Issue Right Based On "Dual Sovereignty" Doctrine

Last week's episode of "The Good Wife" was pretty interesting. At the start of the episode, Alicia and Will secure a "not guilty" verdict in Illinois state court for an Army reservist charged with murdering his wife. The reservist is then charged with the same crime in military court, with viewers given the explanation that double jeopardy does not apply. So, did the show get it right? It turns out that the answer is "yes" based upon the "dual sovereignty" doctrine. If you want a full explanation of the doctrine (and a fascinating theory of how it should apply in the international legal context), you should check out the excellent article by SMU Dedman School of Law Professor Anthony J. Colangelo, Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory, 86 Wash. U. L. Rev. 769 (2009). Here, however, are the basics:

The doctrine "is founded on the...conception of crime as an offense against the sovereignty of the government." It holds that "[w]hen a defendant in a single act violates the (peace and dignity) of two sovereigns by breaking the laws of each, he has committed two distinct 'offences.'" No violation of the prohibition on double jeopardy results from successive prosecutions by different sovereigns, according to the Court, because "by one act [the defendant] has committed two offences, for each of which he is justly punishable." The defendant, in other words, is not being prosecuted twice for the same "offence" if another sovereign successively prosecutes for the same act--even if the second sovereign prosecutes using a law identical to that used in the first prosecution.

So, what does this all mean with regard to the situation in "The Good Wife,"  and why did the show get it right? 

Well, in its 1907 opinion in Grafton v. United States, 206 U.S. 333 (1907), the Supreme Court

held that a homicide prosecution by military court martial foreclosed a successive prosecution for the same homicide by the civil justice system in the then-U.S. territory of the Philippines....[In Grafton], the court martial prosecuted Grafton for "the crime of homicide as defined by the Penal Code of the Philippines." Because the court martial applied the civil law definition of homicide, the Court found that the successive civil court prosecution at issue in the case was "for the identical offense."

The Supreme Court then turned to the argument that, notwithstanding the court martial use of the Filipino criminal code definition of homicide, the military and civil authorities in a U.S. territory constituted distinct sovereigns--each with an independent power to prescribe offenses and to prosecute--and consequently no double jeopardy barrier arose to block a successive civil court prosecution for the same acts. The Court rejected this argument and resolved the issue entirely in terms of jurisdiction.

Because Congress had exclusive prescriptive jurisdiction over the territories, and created the territorial courts and authorized their adjudicative jurisdiction, the courts were capable of applying only U.S. law. The Court found "[t]he jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount." It followed that "[i]f...a person be tried for an offense in a tribunal deriving its jurisdiction and authority from the United States and is acquitted or convicted, he cannot again be tried for the same offense in another tribunal deriving its jurisdiction and authority from the United States." Since both the military court martial and the territorial civil court derived jurisdiction from the U.S. government, and thus necessarily prosecuted for a crime against the laws of the United States, "a second trial of the accused for that crime in the same or another court, civil or military, of the same government" violated double jeopardy.

Thereafter, in 1950, this protection for servicemembers against double jeopardy was codified in Article 44(a) of the Uniform Code of Military Justice, which provides that “No person shall, without his consent, be tried a second time for the same offense." At this point, you may be thinking that it is clear that the reservist on "The Good Wife" could not have been prosecuted again in military court. But wait, there's more.

In its 1982 opinion in United States v. Stokes, 12 M.J. 229, (CMA 1982), the U.S. Court of Military Appeals (which has now been renamed the U.S. Court of Appeals for the Armed Forces) held that

When the Uniform Code was first enacted, it had not been firmly established that service members were entitled to the Fifth Amendment protection against former jeopardy....However, Article 44(a) of the Code...mooted the issue by commanding, "No person may, without his consent, be tried a second time for the same offense." Undoubtedly this provision was not intended to abolish the dual-sovereignties rule that had been applied in interpreting the constitutional guarantee against successive trials for the same offense. Thus, trial by a court-martial is barred by the Code only if the accused has already been tried in a court which derives its authority from the Federal Government....But a trial by court-martial is not barred if the earlier trial was by a state or foreign court. (emphasis added).

Thus, because the reservist's earlier trial was in Illinois state court, there was no double jeopardy problem with his subsequent trial by court-martial in military court.

That's not to say, though, that the show got everything right. During the court-martial, Alicia learns (1) that an Army wife previously said that the reservist's wife slept with her husband's Commanding Officer based upon the promise that he would prevent her husband from being redeployed, but (2) that she is unwilling to provide this testimony at trial. Thus, Alicia calls the Army wife, knowing that she has nothing useful to say at trial, for the sole purpose of thereafter calling another witness to impeach her through her prior inconsistent statement. Of course the purpose of this impeachment is not really to impeach the Army wife (i.e., to show that she is untrustworthy as a witness); instead, the purpose is for the prior statement to be considered as substantive evidence so that the Commanding Officer becomes an alternate suspect.

The classic case deeming such "impeachment" improper is actually a military case as well. In United States v. Ince, 21 F.3d 576 (4th Cir. 1994), Nigel Ince was charged with assault with a dangerous weapon, with intent to do bodily harm. At trial, the prosecution called Angela Neumann, who previously told a military policeman (MP) that Ince admitted to her that he committed the crime charged. When Neumann took the witness stand, however, she testified that her memory failed her. Thereafter, the prosecution called the MP to "impeach" her through her prior statement.

The first trial ended with a deadlocked jury, prompting a second trial, during which the prosecution again called Neumann, knowing that she had nothing to contribute to the prosecution's case. When she again claimed memory loss, the prosecution again called the MP to "impeach" her through her prior statement. In reversing Ince's conviction, the Fourth Circuit found that because the

so-called "impeachment" testimony was both highly prejudicial and devoid of probative value as impeachment evidence, the trial judge should have recognized the Government's tactic for what it was-an attempt to circumvent the hearsay rule and to infect the jury with otherwise inadmissible evidence of Ince's alleged confession.

In other words, you can't call a witness for the sole purpose of impeaching him or her (and getting his or her prior hearsay statement before the jury), so the technique used on "The Good Wife" was improper.

I'm not sure whether Ince was ever retried in federal district court. But if he were, and if he were acquitted, he could not have been subjected to a court-martial. Why? Unlike the defendant on "The Good Wife," he was tried in federal court, meaning that Article 44(a) of the Uniform Code of Military Justice was applicable and that double jeopardy precluded a successive prosecution.



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Thank you for this presentation. The next interesting question under this line of cases is whether someone can be tried in federal court and in a military commission for the same crime. There is a proposal being floated over at www.lawfareblog.com that KSM be tried in civil court AND in a military commission at the same time. Here, clearly, there is no dual sovereign in that it is the Federal Government in both cases trying the person. It would seem to me that such a dual trial would be prevented. Also, with double jeopardy attaching at the time that the jury is empaneled, if something happened in one of the cases (court or military commission) after the jury empaneled (like the Watada court-martial) then double jeopardy would apply to the other case. So this movie discussion is not without its significance.

Posted by: Benjamin Davis | Oct 20, 2010 1:39:59 PM