104.6Double Jeopardy

I. Overview

The protection afforded by the guarantee against double jeopardy includes four scenarios: (1) retrial for the same offense after acquittal, (2) retrial for the same offense after conviction; (3) retrial for the same offense after a prior trial ended without a verdict, as by mistrial, and (4) multiple punishments for the same offense. David S. Rudstein, Double Jeopardy, A Reference Guide to the United States Constitution 38 (2004). “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[.]” Green v. United States, 355 U.S. 184, 187 (1957).

II. Sources

Common law

The protection against double jeopardy was “established in the common law of England long before this Nation’s independence.” Benton v. Maryland, 395 U.S. 784, 795 (1969). By the eighteenth century, “the guarantee against double jeopardy became firmly entrenched in the common law in the form of the pleas of autrefoits acquit (a former acquittal), autrefoits convict (a former conviction), and pardon.” Rudstein, DOUBLE JEOPARDY, at 4. As William Blackstone explained in his monumental treatise, the plea of autrefoits acquit “is grounded on this universal maxim of the common law, that no man is to be brought into jeopardy of his life, more than once, for the same offence.” 4 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND *335.

Constitutions

“The common law principle that no person can be twice put in jeopardy of life or limb for the same offense is now guaranteed by both the federal and the state constitutions.” State v. Allen, 16 N.C. App. 159, 161 (1972).

Federal Constitution

The Double Jeopardy Clause of the Fifth Amendment provides that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. The provision is applicable to the States through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). The “persons” protected by the clause include corporations. United States v. Martin Linen Supply Co., 430 U.S. 564 (1977); Fong Foo v. United States, 369 U.S. 141 (1962). Further, despite its reference to “life or limb,” the constitutional guarantee extends to all criminal offenses, including misdemeanors. Breed v. Jones, 421 U.S. 519, 528 (1975); Ex parte Lange, 85 U.S. 163, 173 (1873).

State Constitution.

The North Carolina constitution has no double jeopardy clause. State v. Rambert, 341 N.C. 173, 175 n.1 (1995). The North Carolina Supreme Court has, however, “interpreted the language of the law of the land clause of our state Constitution as guaranteeing the common law doctrine of former jeopardy.” State v. Brunson, 327 N.C. 244, 247 (1990); N.C. Const. Art. I, § 19. The principle is now regarded as “an integral part of the Law of the Land clause.” State v. Robinson, 375 N.C. 173, 183 (2020). The state constitutional protection against double jeopardy is no broader than that afforded by the federal constitution. State v. Brunson, 327 N.C. 244, 249 (1990); State v. Gilbert, 139 N.C. App. 657, 666 (2000).

Statute

Several state statutes codify double jeopardy protections. These include the following.

• A defendant who has previously been placed in jeopardy for the same offense is entitled to dismissal of charges. G.S. 15A-954(a)(5); State v. Lambert, 53 N.C. App. 799, 801 (1981).

• A defendant is entitled to dismissal of charges if an issue essential to a successful prosecution has previously been adjudicated in the defendant’s favor. G.S. 15A-954(a)(7); State v. Spargo, 187 N.C. App. 115, 119 (2007).

• A defendant tried for one offense may be entitled to dismissal of charges for a joinable offense. G.S. 15A-926(c)(2); State v. Schalow, 379 N.C. 639, 654 (2021).

• If an offense occurred in part outside North Carolina, a person may be tried for that offense in this State if he has not been placed in jeopardy for the same offense in another state. G.S. 15A-134; State v. Christian, 288 N.C. App. 50, 52 (2023).

• If a violation of the North Carolina Controlled Substances Act (Chapter 90, Art. 5) is also a violation of federal law or another state’s law, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this State. G.S. 90-97; State v. Brunson, 165 N.C. App. 667, 671 (2004).

• As for multiple punishments, many statutes include such language as “unless the conduct is covered under some other provision of law providing greater punishment.” E.g., G.S. 14-32.4 (assault inflicting serious bodily injury); 14-33(b) (misdemeanor assault). Such language generally precludes cumulative punishment for both a greater and lesser offense. See State v. Fields, 374 N.C. 629, 634 (2020); State v. Davis, 364 N.C. 297, 304 (2010).