Past chapters have analyzed the process in our country by which certain rights contained in the federal Constitution (most often in the amendments) are determined by the US Supreme Court to be such fundamental rights that the states are compelled to provide those in addition to the federal government. Recall that a state can give more fundamental rights to its citizens but cannot give less, so that once a particular right is deemed by the US Supreme Court to be a “fundamental right” the states must comply. (See chart in Chapter 1). Over the last several decades, the Court has announced in case after case that many of the individual rights set out in the Bill of Rights are so necessary to our system of justice that the states are required to abide by those as well as the federal government. For example, the Mapp v. Ohio, 367 US 643 (1961) court held that the right against unreasonable search was so fundamental as to require the state law enforcement officers to obtain a search warrant just as the federal officers were required to do. (see Chapter 5). Likewise, the rule in the D.C. v. Heller 554 U.S. 570 (2008) case that the 2nd Amendment guaranteed individuals the right to bear arms, was only made applicable to the states through the McDonald v Chicago, 561 U. S. ____ (2010) case. (see Chapter 4). Although it is true that most rights articulated in the federal Bill of Rights have been held to be so “fundamental to the American scheme of justice,” (Duncan v. Louisiana, 391 US 145 (1968) that the states must provide those to their citizens, that is not always the case. The 5th Amendment provides a good opportunity to see how some rights provided by the federal Constitution and amendments are considered fundamental but others are not.
The 5th Amendment to the U.S. Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Among other rights, this amendment guarantees that the federal government must provide the right to indictment by grand jury for certain crimes (grand jury indictment) and the right NOT to be tried twice for the same charge (double jeopardy). Although the right against double jeopardy has been determined to be one of the rights “fundamental to the American scheme of justice” and, therefore, applicable to the states as well as the federal government, the right to indictment by grand jury is NOT considered to be so fundamental, and states are free to disregard that, even though it appears in the 5th Amendment.
The New York Constitution reads similarly to the 5th Amendment regarding these two rights:
No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual service, and the land, air and naval forces in time of war, or which this state may keep with the consent of congress in time of peace, and in cases of petit larceny under the regulation of the legislature), unless on indictment of a grand jury…………..No person shall be subject to be twice put in jeopardy for the same offense; nor shall he or she be compelled in any criminal case to be a witness against himself or herself…
New York is like every other state in that it complies with the double jeopardy requirement of the 5th Amendment. However, New York is among the minority of states who also require grand jury indictment for felony charges.
GRAND JURY
Although the Due Process Clause of the 5th Amendment guarantees a fair trial, it does not require the states to observe the Fifth Amendment’s provision for presentment or indictment by a grand jury. The US Supreme Court has never held that the 5th Amendment mandate of a grand jury which is binding at the federal level is equally applicable to the States. The case that pronounced that concept was Hurtado v. California, 110 U. S. 516 (1884), and regardless of the fact that the holding is more than a century old, and that most other Bill of Rights provisions have, in fact, been declared as so fundamental that states must adhere to them, there has not been a pronouncement that a defendant has the right to be indicted by a grand jury.
The Hurtado court, in examining the appeal by a defendant for a murder charge which was brought to trial through an information rather than a grand jury indictment, held that the words “due process of law” in the Fourteenth Amendment of the Constitution of the United States do not necessarily require an indictment by a grand jury in a prosecution by a state for murder. (Hurtado, supra). While most states do have provisions in their laws or constitutions making the use of grand jury indictments optional in some cases, only 23 require their use in certain serious crimes (including New York). So, while a person facing a serious federal crime must be indicted by a grand jury, if the crime was a serious state crime, it would depend on in which state the crime was committed as to whether there would be a grand jury review and indictment.
DOUBLE JEOPARDY
Simply stated, double jeopardy is the right NOT to be tried twice for the same offense. Originally in our country’s history, the right of Double Jeopardy was not considered to be a fundamental right requiring states to comply with the federal guarantee. See Palko v. Connecticut, 302 US 319 (1937). In which the Court held that “[t]he Fourteenth Amendment does not guarantee against state action all that would be a violation of the original bill of rights (Amendments I to VIII) if done by the Federal Government. 302 US at 323. However, in Benton v. Maryland, 395 US 784 (1969), the Supreme Court stated:
“… we today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.
….the underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, 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….. Like the right to trial by jury, it is clearly “fundamental to the American scheme of justice.”
While the idea of Double Jeopardy – in short, the right not to be tried twice for the same crime- seems simple enough, in reality it has a somewhat complicated application, and opinions issued by various sessions of the Supreme Court do little to create a consistent rule of application. It is clear that a person accused of, tried for and acquitted of a state charge of murder, for example, cannot be tried again by that state, but there are many issues regarding trial at different levels for the same set of circumstances that are not as clear. For example, a defendant accused of a kidnap-murder who crosses state lines during the crimes, can be tried for murder in both states. Heath v. Alabama, 474 US 8 2(1985). In addition, the same set of circumstances leading to an acquittal in a state court may be used for prosecution if the defendant simultaneously violated federal law. United States v. Lanza, 260 US 377 (1922). This is known as the dual sovereignty doctrine.
Basic double jeopardy rules are as follows:
—Jeopardy “attaches” in a criminal trial when the jury is sworn in, and the trial must continue until its conclusion. Once the jury has reached a final decision, the right against Double Jeopardy will protect the defendant from a second trial on the same charge. In the event of a non-jury trial, jeopardy attaches when the first witness is sworn in, and the Double Jeopardy rules apply once the judge has rendered a verdict. (This is the rule that prevents a prosecutor from appealing a not guilty verdict.)
—If the trial ends in a conviction for a lesser offense than what was charged, Double Jeopardy will prevent a new trial.
—If a trial does NOT reach a final verdict (i.e. a “hung” jury or mistrial) Double Jeopardy will NOT prevent a new trial.
—A defendant who decides to appeal is considered to have waived his Double Jeopardy rights and may be subject to a new trial if his conviction is reversed.
—The same set of circumstances may violate both state and federal law, and Double Jeopardy will not prevent both prosecutions.
—The same set of circumstances may violate laws in two different states and Double Jeopardy will not prevent both prosecutions.
As noted, both the guarantee against double jeopardy and the right to grand jury indictment for felony offenses are provided to New York citizens.
