Argument preview: Double jeopardy and the distinction between the correct and incorrect elements of the charged offense
Posted on November 2, 2012 at 1:21 pm by Steve Vladeck
For decades, the Supreme Court has repeatedly reminded state and federal trial courts that the Double Jeopardy Clause of the Fifth Amendment prohibits the retrial of an acquitted defendant even when the acquittal is solely the result of the trial judge’s erroneous evidentiary rulings with regard to a required element of the underlying offense. The question the Justices will consider when they hear oral argument next Tuesday in Evans v. Michigan is whether the same rule holds when the trial judge’s mistake is adding an element to the offense, as opposed to mistakenly ruling on the evidence adduced in support of the correct elements. Although the Michigan Supreme Court answered this question in the negative (and other lower courts are divided), Tuesday’s argument may well turn on the ability of Michigan –and the United States, appearing as amicus curiae in support of the state – to convince the Court that this is a distinction worth a difference.
Lamar Evans was charged for his alleged role in starting a fire in a vacant house, in violation of Michigan law. Missing an important “use note” in the then-current version of the Michigan Criminal Jury Instructions, the presiding judge at Evans’s trial ruled that the prosecution was required to present proof that the burned house was not a dwelling, which is not – and should not have been – a required element of the charged offense. When the prosecution closed its case in chief without adducing any proof of this erroneously included element, Evans’s counsel successfully moved for a directed verdict of acquittal on the ground that the prosecution had failed to introduce evidence sufficient to prove one of the elements of the offense beyond a reasonable doubt.
Because prosecutors were not in fact required to prove such an element, the Michigan Court of Appeals reversed the trial court’s directed verdict of acquittal. The court further held that such a reversal did not violate the Double Jeopardy Clause, because the trial court’s directed judgment of acquittal was not in fact an “acquittal” for purposes of the Double Jeopardy Clause under the Supreme Court’s seminal 1977 decision in United States v. Martin Linen Co.
The Michigan Supreme Court granted Evans’s petition for discretionary leave to appeal and affirmed the decision of the Michigan Court of Appeals. Writing for a four-to-three majority, Justice Zahra acknowledged that, in a series of cases, the U.S. Supreme Court had held that “when a trial court makes an error regarding the sufficiency of the evidence to satisfy a factual element or elements of the charged offense, that resolution nonetheless constitutes an acquittal for the purposes of double jeopardy.” But Evans’s case was distinguishable, the court concluded, because “the trial court’s legal error did not involve a resolution of any of the factual elements of the charged offense, and thus its ruling does not fall within the definition of acquittal for the purposes of double jeopardy.”
Justices Cavanagh and Hathaway filed dissents that, although separate, both centered on the same basic argument: for double jeopardy purposes, there is no meaningful distinction between a trial court’s erroneous ruling related to a required element of an offense and one related to a mistakenly added element of an offense. Quoting the Court’s decision in Martin Linen, they contend that both kinds of erroneous rulings “represent a resolution, correct or not, of some or all of the factual elements of the offense charged.”
Evans filed a petition for certiorari, which the Court granted on June 11, 2012.
Given this background, the arguments advanced by the parties in their merits briefs are not particularly surprising. Evans’s brief starts from the premise that the core function of the Double Jeopardy Clause is to bar further criminal proceedings after a finding, correct or not, that the defendant is not culpable. Thus, whether the incorrect finding goes to the evidence that was – or should have been – introduced to prove the required elements of the offense or to the existence of a non-required element is immaterial; in both cases, the trial court made a legal error that led to the (potentially erroneous) conclusion that the defendant was not guilty of the charged offense, and must therefore be acquitted. And as Evans’ briefs emphasizes, this understanding is consistent with the Court’s post-Martin Linen jurisprudence, which has repeatedly held that jeopardy attaches to acquittals resulting from trial judges’ rulings erroneously requiring prosecutors to prove facts not found in the charged offenses. Rather than a hyper-specific rule about facts, Evans argues that these cases are about culpability – and that jeopardy attaches to any acquittal that is, whether in form or effect, a judicial holding that the prosecution cannot establish the defendant’s culpability beyond a reasonable doubt.
In response, Michigan’s brief focuses on the difference between factual errors and legal ones—with a Princess Bride quote in support, to boot. As the state argues, there is a reason why Martin Linen and its progeny have always focused on erroneous rulings with regard to the facts that must be proven to establish the charged offense: in those cases, the error infects the jury’s ability to reach a verdict on the actual conduct proscribed by the underlying statute. In contrast, where the trial judge adds an incorrect element to the offense, its error does not infect the resolution of the offense actually charged. In this regard, the state’s case is significantly aided by the amicus brief filed by the Solicitor General in support of Michigan, which far more clearly elucidates the distinction between elements properly identified by the state and those incorrectly added by the trial judge. To that end, the federal government argues, Martin Linen and its successor cases can be distinguished because they each involved circumstances in which the error directly affected the trial on the actual, charged offense. Where the error changes the offense pursuant to which the defendant is charged, a retrial on the properly defined offense is not, in fact, a second trial on the same charge.
Ultimately, deciding which side has the better of these arguments may well depend on one’s view of the underlying orientation of the Double Jeopardy Clause. From Evans’s perspective, the Double Jeopardy Clause is about protecting defendants from being retried when they are found not culpable in their first trial, rightly or wrongly. Why they are found to be not culpable is beside the point, so long as the acquittal is based upon the conclusion that the prosecution failed to carry its burden in establishing the defendant’s culpability for the charged offense beyond a reasonable doubt. From the state’s perspective and that of the United States as amicus curiae, the Double Jeopardy Clause is about the charged offense as charged, which would explain why the Martin Linen line of cases bar retrial when an acquittal is based on erroneous rulings as to the facts the government was required to introduce to prove the correct elements of the underlying offense. If the trial court adds an element to that offense, such a ruling may well be error, but it necessarily means, in the view of Michigan and the United States, that the defendant is not acquitted on the charged offense as charged, but rather the charged offense as wrongly conceived by the trial court.
Although this understanding of the Double Jeopardy Clause may have some normative attractiveness, it may also be difficult to square with the rationale – and much of the language – that the Court has deployed in its prior double jeopardy jurisprudence. After all, whatever one thinks of the distinction between erroneous rulings with regard to the facts introduced in support of correct elements and those that require the government to prove incorrect elements, in both contexts, the trial court’s ultimate ruling appears to be an acquittal “in substance as well as form,” in the words of the Martin Linen Court. Put another way, insofar as the Court is unwilling to revisit Martin Linen and its progeny, the true question before the Justices may not ultimately be whether they accept the existence of a distinction between these two sets of cases, but whether that distinction supports the conclusion that the erroneous rulings in the former category of cases truly are “acquittals,” whereas the trial court’s error in Evans truly isn’t.