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Fifth Amendment Court Cases -
Double Jeopardy Clause

Each of these Fifth Amendment Court Cases is somehow significant to the way the Supreme Court has interpreted the Double Jeopardy Clause in the Fifth Amendment to the US Constitution. Well, most are significant, some are just interesting!

Fifth Amendment Court Cases - Double Jeopardy Clause -
The case of Jack McCall

One of the most famous 5th Amendment Double Jeopardy Clause cases is the case of Jack McCall, the murderer of Wild Bill Hickok. McCall shot Hickok in the back of the head in a saloon in Deadwood, South Dakota, apparently because he was insulted the day before when Hickok offered to pay for McCall's breakfast. McCall had lost all his money in a poker game the night before.

Deadwood was technically not in the United States, it was in Indian territory where the jurisdiction of the United States did not apply. After the killing, a group of townspeople held an impromptu trial and found McCall not guilty. McCall then fled to Wyoming where officials captured him and returned him to Dakota Territory, which was a part of the United States. McCall was tried again and the South Dakota Territory court found that the Double Jeopardy Clause was not violated by trying him a second time because the city of Deadwood was not in the United States. Because it was not in the United States, there was no legal protection there against double jeopardy. McCall was found guilty and became the first person to be executed in Dakota Territory.

United States Supreme Court Building

Supreme Court
of the United States

Fifth Amendment Court Cases - Double Jeopardy Clause -
Harry Aleman vs. Judges of the Criminal Division, Circuit Court of Cook County, Illinois, et al.

The Double Jeopardy Clause does not prevent a new trial if the first trial was found to somehow be tainted by fraud. For example, in Harry Aleman vs. Judges of the Criminal Division, Circuit Court of Cook County, Illinois, et al., 1998, it was found that the defendant had bribed the judge into not convicting him. The Supreme Court said to retry the case would not be a violation of the Double Jeopardy Clause because the bribery had protected him from ever being in jeopardy in the first place.

Fifth Amendment Court Cases - Double Jeopardy Clause -
United States vs. Felix

A person cannot be convicted for the same crime twice unless he has violated more than one law. In the case United States vs. Felix, 1992, the defendant had committed one actual crime, but was convicted for breaking two laws. One conviction was for the actual crime and the second was for conspiracy to commit the same crime. These were violations of two separate laws. The Supreme Court held that the Double Jeopardy Clause was not violated because two different laws were broken, for which the defendant was tried only once for each law violation.

Fifth Amendment Court Cases - Double Jeopardy Clause -
The Blockburger Test

If a person has violated more than one law with only one criminal act, the Double Jeopardy Clause applies in some cases, and in some cases it does not. For example, if a person was tried and convicted of assault, he could not later be tried, using the exact same evidence, for murder. He could however, be tried later for murder, if new evidence came to light in addition to the evidence from the first trial. He would be tried for two separate crimes, with two separate sets of evidence. If he was tried for both crimes, in two separate trials, using the same evidence, it would be a violation of the Double Jeopardy Clause, because he was tried twice with the same evidence.

Supreme Court Justice George Sutherland

Supreme Court Justice
George Sutherland

This is known as the Blockburger test and it is derived from Blockburger v. United States, 1932. It states basically that a person cannot be tried for lesser and greater crimes using the same evidence in subsequent trials. A person can be tried on lesser and greater crimes using the same evidence if the crimes are tried together in one trial. This does not constitute double jeopardy because the defendant is not tried twice using the same evidence. The Blockburger test, as written in the Court's unanimous ruling by Justice George Sutherland, can be explained as follows: "The test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not."

Fifth Amendment Court Cases - Double Jeopardy Clause -
Fong Foo vs. United States

In a case called Fong Foo vs. United States, 1962, the Supreme Court ruled that a case could not be retried, even if the lower court judge had made serious errors in his decisions. In this case, a judge ordered the jury to acquit the defendant, believing that the conduct of the United States District Attorney had been improper and that the witnesses had lacked credibility. This decision was appealed by the government. The Appeals Court then ruled that a retrial could take place, saying that the judge did not have legal power to tell the jury what to do in this case.

The Supreme Court reviewed the case and disagreed with the Appeals Court. It recognized that the original judge had been wrong in his decision, but also said that the jury had acquitted the defendant. This was a final judgment and the trial had been officially closed. The Court judged that a retrial, in spite of the original judge's errors, would be a violation of the Double Jeopardy Clause.

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Read more about the history and meaning of the Double Jeopardy Clause here.

Read more about the history and meaning of the 5th Amendment here.

Learn more about Cases relating to the following Fifth Amendment clauses:

Learn more about these Amendments:

Preamble to the Bill of Rights
Learn about the 1st Amendment here.
Learn about the 2nd Amendment here.
Learn about the 3rd Amendment here.
Learn about the 4th Amendment here.
Learn about the 5th Amendment here.
Learn about the 6th Amendment here.
Learn about the 7th Amendment here.
Learn about the 8th Amendment here.
Learn about the 9th Amendment here.
Learn about the 10th Amendment here.

Read the Bill of Rights here.

Learn more about the Bill of Rights with the following article:

Last updated 7/30/12


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