Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that a verdict of acquittal could not be reviewed without putting a defendant twice in jeopardy, and thereby violating the constitution. In this case, the state declined to present evidence against the defendant whose counsel moved for directed findings of not guilty and the court granted the motion for a directed finding. That is a textbook acquittal: a finding that the state’s evidence cannot support a conviction. What constitutes an acquittal is not to be controlled by the form of the judge’s action; it turns on whether the ruling of the judge, whatever its label, actually represents a resolution of some or all of the factual elements of the offense charged. Martinez v. Illinois, 572 U.S. 833, 134 S. Ct. 2070, 188 L. Ed. 2d 1112 (2014).

In criminal prosecutions, the issue-preclusion principle means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Issue preclusion applies when a jury returns inconsistent verdicts, convicting on one count and acquitting on another count, when both counts turn on the very same issue of ultimate fact. When inconsistent guilty verdicts are vacated on appeal because of error in the judge’s instructions unrelated to the verdicts’ inconsistency, the vacatur of a conviction for unrelated legal error does not reconcile the jury’s inconsistent returns. Issue preclusion does not apply when verdict inconsistency renders unanswerable what the jury necessarily decided. The acquittal remains inviolate, but, because it is unknown what the jury would have concluded had there been no instructional error, a new trial on the counts of conviction is in order. Bravo-Fernandez v. United States, 580 U.S. 5, 137 S. Ct. 352, 196 L. Ed. 2d 242 (2016).

If a defendant consents to two trials when one would have avoided a double jeopardy problem, that consent precludes any constitutional violation associated with holding a second trial. In those circumstances, the defendant wins a potential benefit and experiences none of the prosecutorial oppression the double jeopardy clause exists to prevent. Currier v. Virginia, 585 U.S. ___, 138 S. Ct. 2144, 201 L. Ed. 2d 650 (2018).

Under the dual-sovereignty doctrine, a state may prosecute a defendant under state law even if the federal government has prosecuted the defendant for the same conduct under a federal statute. Gamble v. United States, 587 U.S. ___, 139 S. Ct. 1960, 204 L. Ed. 2d 322 (2019).

The double jeopardy clause does not prohibit successive prosecutions by the same sovereign. It prohibits successive prosecutions “for the same offence.” Under the dual sovereignty doctrine, an offense defined by one sovereign is different from an offense defined by another. Thus, in this case, even if the federal government prosecuted the defendant’s tribal offense, the double jeopardy clause did not bar the federal government from prosecuting the defendant under federal law too. Denezpi v. United States, 596 U.S. ___, 142 S. Ct. 1838, 213 L. Ed. 2d 141 (2022).

The double jeopardy clause of the U.S. Constitution permits the retrial of a defendant following a trial in an improper venue and before a jury drawn from the wrong district. Smith v. United States, 599 U.S. ___, 143 S. Ct. 1594, 216 L. Ed. 2d 238 (2023).

Custody in the county jail incidental to conviction added to the maximum term imposed on conviction subjected the petitioner to multiple penalties for one offense in excess of the maximum statutory penalty and in violation of the guarantee against double jeopardy. Taylor v. Gray, 375 F. Supp. 790 (1974).

Double jeopardy was not violated when the defendant was convicted of separate offenses under s. 161.41 [now s. 961.41] for simultaneous delivery of different controlled substances. Leonard v. Warden, 631 F. Supp. 1403 (1986).

The state’s attempt to retry the defendant for armed robbery alleging the use of a different weapon after a trial court conclusion that an acquittal on a first armed robbery charge resulted from insufficient evidence of the use of a gun violated double jeopardy protections. It did not necessarily follow that the state was prevented from pursuing a charge of simple robbery however. Losey v. Frank, 268 F. Supp. 2d 1066 (2003).

Multiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to Permit Two Homicide Convictions for Causing a Single Death? Albee. 1990 WLR 553.

State v. Grayson: Clouding the Already Murky Waters of Unit of Prosecution Analysis in Wisconsin. Leslie. 1993 WLR 811.

The Use of Wisconsin’s Bail Jumping Statute: A Legal and Quantitative Analysis. Johnson. 2018 WLR 619.

due process

It is not necessary to hold a second Goodchild, 27 Wis. 2d 244 (1965), type hearing before admitting testimony of a second witness to the same confession. State v. Watson, 46 Wis. 2d 492, 175 N.W.2d 244 (1970).

The sentencing duties of a trial court following a second conviction after retrial or upon resentencing bars the trial court from imposing an increased sentence unless events occur or come to the sentencing court’s attention subsequent to the first imposition of sentence that warrant an increased penalty and the court affirmatively states the ground for increasing the sentence on the record. Denny v. State, 47 Wis. 2d 541, 178 N.W.2d 38 (1970).

An arrest is not void because of a three-month interval between the time of the offense and the arrest. Gonzales v. State, 47 Wis. 2d 548, 177 N.W.2d 843 (1970).

A lineup, wherein two suspects were required to wear special clothing and a number of victims were allowed to identify them out loud, influencing others, was unfair and later influenced in-court identification. Jones v. State, 47 Wis. 2d 642, 178 N.W.2d 42 (1970).

An out of court identification by a witness shown only a photograph of the defendant and no other persons was not a denial of due process but does reflect on the weight given the evidence. Defense counsel need not be present at the identification. Kain v. State, 48 Wis. 2d 212, 179 N.W.2d 777 (1970).

The rule that a defendant during a trial should not be handcuffed does not extend to periods outside the courtroom, and the fact that some jurors saw the defendant shackled was not prejudicial. State v. Cassel, 48 Wis. 2d 619, 180 N.W.2d 607 (1970).

It is not a violation of due process for the judge who conducts a hearing regarding the admissibility of a confession to continue as the trial judge in the case. State v. Cleveland, 50 Wis. 2d 666, 184 N.W.2d 899 (1971).

A statute denying probation to second offenders and that does not require proof of criminal intent is constitutional. State v. Morales, 51 Wis. 2d 650, 187 N.W.2d 841 (1971).

When a defendant is no longer entitled to a substitution of judge, prejudice in fact by the judge must be shown. State v. Garner, 54 Wis. 2d 100, 194 N.W.2d 649 (1972).

A child committed to the state who is released under supervision, who then violates the terms of the release is entitled to the same protections as an adult as to a hearing on probation revocation. State ex rel. Bernal v. Hershman, 54 Wis. 2d 626, 196 N.W.2d 721 (1972).

A defendant who, believing he was seriously wounded, began to tell what happened and was given Miranda, 384 U.S. 436 (1966), warnings waived his rights when he continued to talk. Waiver need not be express when the record shows the defendant was conscious and alert and said he understood his rights. State v. Parker, 55 Wis. 2d 131, 197 N.W.2d 742 (1972).

The duty of the state to disclose exculpatory evidence is not excused by the district attorney’s belief that the evidence is incredible, but failure to disclose is not prejudicial when the evidence would not have affected the conviction. Nelson v. State, 59 Wis. 2d 474, 208 N.W.2d 410 (1973).

Due process requires that a juvenile be afforded a copy of a hearing examiner’s report recommending revocation of aftercare supervision and the opportunity to object thereto in writing prior to the decision of the Department of Health and Social Services secretary. State ex rel. R.R. v. Schmidt, 63 Wis. 2d 82, 216 N.W.2d 18 (1974).

Circumstances to be considered in determining whether the delay between the alleged commission of a crime and an arrest denies a defendant due process of law include: 1) the period of the applicable statute of limitations; 2) prejudice to the conduct of the defense; 3) intentional prosecution delay to gain some tactical advantage; and 4) the loss of evidence or witnesses, and the dimming of memories. The mere possibility of prejudice from those factors is not alone sufficient to demonstrate that a fair trial is impossible—actual prejudice must be shown. State v. Rogers, 70 Wis. 2d 160, 233 N.W.2d 480 (1975).

A photo identification using one color and four black and white photos when two of the five, including the color photo, were of the defendant was not impermissibly suggestive. Mentek v. State, 71 Wis. 2d 799, 238 N.W.2d 752 (1976).

The fact that the accused, who demanded a jury trial, received a substantially greater sentence than an accomplice who pleaded guilty did not constitute punishment for exercising the right to a jury trial or a denial of either due process or equal protection. Drinkwater v. State, 73 Wis. 2d 674, 245 N.W.2d 664 (1976).