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Grey, B. Sweitzer Professor of Law, Emeritus.

Heller, A. John Henry Merryman, B. James Cavallaro, A. Johnson Faculty Scholar. Robert M. Daines, B. Michele Landis Dauber, B. Bergreen Faculty Scholar, and Professor by courtesy of Sociology. Lawrence M.

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Friedman, A. Henry T. Greely, A. Daniel E. Ho, B. Pamela S. Karlan, B. Amalia D. Kessler, A.

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Daniel P. Kessler, B.

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Michael Klausner, B. William S. Koski, B. Lawrence C. Jenny S. Martinez, B. Jay Mitchell, B. Alison D. Morantz, A. Wilson Distinguished Faculty Scholar. Mitchell Polinsky, A. Barton H. Thompson, Jr. Michael Wara, B. Margaret R. Caldwell, B. In certain circumstances, a prisoner arguing that legal errors infected her trial must convince a court of her innocence in order to get relief.

Unfortunately, such judicial exonerations often fail to persuade prosecutors, who are generally free to retry prisoners who successfully challenge their convictions. There have been several instances in which prisoners convinced courts of their innocence and overturned their convictions, only to have prosecutors bring the exact same charges against them a second time. This Article argues that the Double Jeopardy Clause protects these exonerated defendants from the ordeal of a second prosecution.

Permitting prosecutors to continue to pursue such individuals contradicts established Supreme Court case law, violates the policies animating the Double Jeopardy Clause, and impairs the operation of the criminal justice system. Robert Shaw owned a jewelry store in Phoenix, Arizona. During a robbery of his store, a robber brutally beat him on the head with a skillet before strangling him to death with his own necktie. At first blush, this might not seem very unusual.

Carriger is not the only person to face a second state prosecution after being convicted by state authorities and exonerated by a federal court. Each of these cases—and others like them—followed a similar course. To overcome those obstacles, all three men took advantage of the fundamental miscarriage of justice doctrine. This dire result enables a court to overcome procedural barriers and consider the merits of her habeas corpus claims.

The Supreme Court delineated the modern contours of the fundamental miscarriage of justice doctrine in Schlup v. Yet a successful habeas petition is often not a final victory for the petitioner. A successful petition usually invalidates a trial or sentencing proceeding on the ground that the proceeding was legally flawed. Accordingly, if a court subsequently grants relief on the merits of her habeas petition, the government cannot retry her for the same offense. This Article presents and explores this novel argument, supported both by Supreme Court precedent and the principles and policies underlying the Double Jeopardy Clause, which no party has yet raised and no court has yet considered.

Experience has shown that this issue has significant practical importance.


The federal court rulings exonerating Paris Carriger, Lloyd Schlup, and Paul House failed to persuade the respective state prosecutors pursuing them. Further prosecution of a petitioner who has established his innocence is also objectionable because it gives the state leverage that it may use to induce the exonerated petitioner to enter into a plea bargain. If the state offers the opportunity to plead guilty in exchange for time served, the petitioner may be tempted to accept in order to put his wrongful conviction behind him and ensure his freedom, even if the state is unlikely to win at trial.

But a guilty plea can have two important consequences: First, it may hinder a lawsuit for wrongful conviction or lower the damages the petitioner can recover. This Article then proceeds to analyze the intersection of these two legal doctrines in Part III, which also discusses the policy implications and addresses the most likely counterarguments. For the first years of its existence, the Supreme Court had relatively little occasion to develop its double jeopardy jurisprudence. In , the Court ruled that the Double Jeopardy Clause did not apply to the states.

First, in , the Court held that the Double Jeopardy Clause applied to the states because it was incorporated through the Fourteenth Amendment. Thereafter, the Supreme Court initially encountered some difficulty as it tried to define the contours of the Double Jeopardy Clause. Three years later, in United States v. John Scott was charged with distributing narcotics. The government appealed. In an opinion that heavily relied on United States v. The Supreme Court granted certiorari and reversed.

The Court distinguished these scenarios from a jury verdict of not guilty and a ruling by the court that the evidence is insufficient to convict, both of which constitute [a] judgment of acquittal that cannot be appealed under the Double Jeopardy Clause. Once a defendant is acquitted, the Double Jeopardy Clause protects him against any further proceedings devoted to establishing his factual guilt or innocence of the offense in question. When a trial court enters a guilty verdict, and either the trial judge or an appellate court overturns it on the ground that the evidence was insufficient to sustain a conviction, the government may pursue an appeal.

In Smalis v. Pennsylvania , the defendants were the owners of a building that burned down under suspicious circumstances, killing two tenants. The Pennsylvania Supreme Court reversed. The Supreme Court granted certiorari and unanimously reversed. In Smith v. Smith was charged with various crimes, including unlawful possession of a firearm.

Smith was convicted on all three counts. It is also worth noting that the scope of Double Jeopardy Clause protection that accompanies an acquittal extends beyond the acquitted offense itself. If an acquittal rationally implies a particular factual conclusion, the state may not bring new charges that cannot be reconciled with that factual conclusion. Swenson , several men robbed six people playing poker. Further, if a defendant is convicted or acquitted of a particular crime, the Double Jeopardy Clause bars a successive prosecution for another crime unless each of the two offenses includes at least one element that the other does not.

The Supreme Court has even applied the principles it identified in Scott when considering whether a state may make repeated attempts to impose the death penalty on a particular defendant. The Double Jeopardy Clause generally does not protect a defendant who overturns a conviction and secures a new trial from the possibility of receiving a harsher sentence in the new proceeding than she received following the original trial. This action might not be possible to undo.

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Barry 64 STAN. Kelman, A. Brucato, B. Robinson, B. Wendell and Edith M. Franklin, A. Gould IV, A. Scott, A. Wald, A. Richman Professor of Law Joseph M.

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Bankman, A. Parsons Professor of Law and Business R. Richard Banks, B. Brodie, A. Marcus Cole, B. Benjamin Scott and Luna M. Johnson Faculty Scholar Robert M. Donohue III, B. Fisher, A. Osborne Professor of Law Barbara H. Fried, B. Saunders Professor of Law Lawrence M. Gilson, A.

Grundfest, B. Lemley, B. Neukom Professor of Law Lawrence C. McConnell, B. Sweet Professor of Law A. Rabin, B. Rhode, B. Sivas, A. Spaulding, B. Beardsley Professor of Law Kathleen M. Sullivan, B.

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Sykes, B. Huddleson, Jr. Mills, B. Weiner, A. Ball, J. Menell, S. Pfleiderer, B. Sklansky, A. Verret, B. Avila, J. Daniel Barton, J. Marilyn M. Bautista, J. Jeanine Becker, J. Karen Biestman, J. Byron Bland. Ryan Calo, J. In the ebook edition, all the footnotes, graphs, and tables of contents including those for individual articles are fully linked, properly scalable, and functional; the original note numbering is retained.

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The current volume is 63, for the academic year , and the present compilation, in ebook form, represents Issue 6, June The present issue is a special Symposium, featuring cutting-edge articles on patent law and the IP issues related to genetic and biotech innovation and business methods after the landmark U.

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Similar ebooks. See more. Stanford Law Review. A leading law journal features a digital edition as part of its worldwide distribution, using quality ebook formatting and active links. The Feb. In the ebook edition, all the notes, graphs, and tables of contents including those for individual articles are fully linked, properly scalable, and functional; the original note numbering is retained.