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Double, double toil and trouble: an invitation for regaining double jeopardy symmetry in courts-martial.

Double, double toil and trouble; Fire burn, and caldron bubble. (1)

I. Introduction

Shakespeare opens his play Macbeth with the king seeking advice from the three witch oracles. (2) Later, Macbeth approaches as the witches hover over a ghoulish caldron, preparing a menacing concoction. (3) As they prepare their brew they conjure the image of impending doom by chanting the lines "Double, Double, Toil and Trouble," expressing the witches' desire to double human suffering by trying "to increase human misery, to multiply pain and distress, chaos, and tyranny." (4) In the context of double jeopardy, the witches' expectation, symbolized by their menacing hymn, epitomizes legal attempts to protect defendants against a prosecutorial desire to double human toil and trouble. At the same time, throughout the play the witches forecast the future, providing their advice and forewarning through ominous brainteasers and riddles. Similar puzzles plague the legal scholar seeking to discern the meaning of the Double Jeopardy Clause.

The misunderstandings regarding the Double Jeopardy Clause exist because "[t]he riddle of double jeopardy stands out today as one of the most commonly recognized yet most commonly misunderstood maxims in the law, the passage of time having served in the main to burden it with confusion upon confusion." (5) Hence, like the prophecy of the witches, double jeopardy jurisprudence is "full of double jeopardy double talk." (6) This is especially true when conducting a double jeopardy analysis in factual situations at the fringes of the clause's protection or in the context of a military court-martial, where constitutional and statutory protections intersect.

One such circumstance is double jeopardy's application to the factual situation found in Diaz v. United States. (7) Although rarely applied, the Diaz holding provides an "exception" (8) to constitutional double jeopardy protection where an accused is tried and convicted for a lesser offense, such as assault, and later, after completion of the trial, the original victim dies. According to the Diaz court, the Double Jeopardy Clause will not prevent a subsequent prosecution of the accused for the death of the victim even though the accused stands convicted of a lesser offense. (9)

While the Diaz "exception" seems simple to state and apply, the application of the exception in a court-martial is complicated by the additional statutory protection provided by Article 44 of the Uniform Code of Military Justice (UCMJ). (10) While at least one appellate court implied that Article 44 and the Fifth Amendment Double Jeopardy Clause provide equal protections, a closer look demonstrates that their interplay is more complicated. (11) This is partly because military appellate courts fail to articulate the double jeopardy basis of their holding--Article 44 or the Fifth Amendment--due to the fact that the court assumes the protections run parallel. (12)

Because of the riddles, confusion, and mystery of the Double Jeopardy Clause, this article dissects these complimentary double jeopardy shields by studying their application in a Diaz factual scenario. Accordingly, this article starts by exploring the history of the double jeopardy protection, looking for insight into whether Diaz is an exception to the clause or a factual situation where the clause, by definition, is inapplicable. Second, this article uses the historical development of the double jeopardy concept to examine the history and policy of both the constitutional and statutory double jeopardy protections provided to servicemembers in courts-martial. Third, the article applies the principles and policy rationale of these protections to a Diaz factual situation. (13) This article concludes that Article 44 provides more protection to an accused in a Diaz factual situation on account of Article 44's additional policy foundations. Because of this phenomenon, this article ends with the implications a Diaz factual situation has for military justice practitioners and recommends that Congress should amend Article 44 to clear any confusion.

II. History of Double Jeopardy Protection

Many courts declare that the protection against double jeopardy is a fundamental right of man or universal law. (14) Some jurists maintain that double jeopardy is a concept engrained in the common law carried over from England. (15) Others contend it is so significant that it was incorporated as part of the Magna Carta, even though it is not expressly or impliedly contained in the text of the document. (16) Modern jurists would likely conclude that the protection against being twice placed in jeopardy is fundamental to our contemporary understanding of the rule of law that protects individual rights against state despotism. (17)

Interestingly, while viewed as a fundamental individual right today, this was not always the case. Indeed, a double jeopardy clause was not contained in most post-Revolutionary War state constitutions. (18) While manifestations of the right exist in early English common law writings, including those of Hale and Coke in the seventeenth century and Blackstone in the eighteenth century, (19) it is unclear that double jeopardy was a fundamental protection in colonial America. (20) Therefore, the Constitution gives double jeopardy its status as a fundamental right. (21) This may also explain the divergence of views between English double jeopardy law and that developed in American jurisprudence. (22)

A. Historical Development

Even if double jeopardy was not considered fundamental at the time of incorporation into the individual protections of the Bill of Rights, a study of the historical origins of the right in England sheds light on its present day application. Beginning in the Digest of Justinian, double jeopardy originated as a concept to protect those acquitted of a crime: "the governor should not permit the same person to be again accused of a crime of which he had been acquitted." (23) The idea then carried over into Roman canon law. (24) During early English common law, the victim was authorized to appeal cases, thus the double jeopardy concept developed as a constraint to prevent the appellant from repeatedly prosecuting a defendant in a case where he was acquitted on an indictment, not as a check on state power. (25) As a result, although not originally applicable to indictments, double jeopardy applied to a final resolution on appeal. (26)

Ultimately, though, the notion flourished as a check upon state power. The concept of a protection from retrial after an acquittal arose at common law in England because the only punishment for felonies was death or mutilation. (27) While seemingly harsh, common law punishment suggests that the "life or limb" phrase from the Fifth Amendment derives from its literal meaning in English history. (28) Eventually, the concept barring dual trials grew in importance because of the need for a check on governmental power as the quantity of criminal laws increased. (29) Accordingly, modern double jeopardy concepts began as an effort to lessen the power of the king and mitigate the harshness of criminal prosecutions at common law. (30)

Consequently, Blackstone declared that "the plea of autrefois acquit, for a formal acquittal, is grounded in the universal maxim ... that no man is to be brought into jeopardy of his life more than once for the same offense." (31) While Blackstone applied the concept of double jeopardy as an individual right that limited the power of the state, his conception of English common law limited the scope of the right itself. (32) English common law, at the time of America's birth, limited double jeopardy protection to felonies and required a verdict of acquittal or conviction for jeopardy to vest as a bar to additional prosecution. (33)

The American formulation of the modern day double jeopardy jurisprudence began in Massachusetts common law. (34) Here, jeopardy broadened beyond "life and limb" to all criminal prosecutions and civil trespasses. (35) Ultimately, New Hampshire was the first American constitution to adopt a double jeopardy "clause." (36) Its constitution stated, "No subject shall be liable to be tried after an acquittal, for the same crime or offense." (37) Hence, even in early American constitutions, double jeopardy existed as a procedural bar to subsequent trials following an acquittal, a theory modeled on the early common law notions of double jeopardy. In its 1790 Declaration of Rights, Pennsylvania announced that "no person shall, for the same offense, be twice put in jeopardy of life or limb." (38) For the first time, an American state adopted the more modern concept that double jeopardy protected an accused from multiple prosecutions for the same offense, regardless of the initial verdict (conviction or acquittal).

Eventually, the ever-growing belief in double jeopardy as an individual entitlement forced its incorporation into the Bill of Rights as part of the Fifth Amendment, transforming this rule of criminal procedure into a constitutional right. (39) Because of the importance of limiting the power of the state,
   [i]t is therefore not surprising that, in
   constructing a charter of individual
   liberties to supplement the structural
   provisions of the Constitution, the Framers
   looked to common-law protections against
   the power of the Crown, and adopted the
   prohibition of double jeopardy reflected in
   the Institutes [the writings of Coke], the
   Pleas [the writings of Hale], and the
   Commentaries [the writings of
   Blackstone]. (40)


Thus, James Madison, when drafting the Fifth Amendment, included the prohibition that "[n]o person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offense." (41) This language concerned the Senate, and was changed to prevent a person from being "twice in jeopardy of life or limb." (42) While the language remains today, the clause's application at the time of the Constitution's enactment was much simpler, given that neither "the United States nor the defendant had any right to appeal an adverse verdict. [Therefore, t]he verdict in such a case was unquestionably final, and could be raised in bar against any further prosecution for the same offense." (43)

B. Common Law Pleas in Bar

Due to its common law foundations, an understanding regarding the application of the archaic pleas at bar can assist in an interpretation of the current conception and application of double jeopardy. (44) The Double Jeopardy Clause of the Fifth Amendment has its historical roots in the English common law pleas in bar. (45) Those pleas include autrefois acquit, (46) autrefois convict, (47) autrefois attaint, (48) and former pardon. (49) Of these four, only two of these concepts survive in present day theories of double jeopardy: autrefois acquit (50) and autrefois convict. (51) The other two pleas no longer exist and survive only in the form of historical vestiges of the formal laws of English pleading in the past. (52) The full French phrase for the two pleas that survive, relevant to an understanding of today's double jeopardy jurisprudence, are autrefois acquit de meme felonie and autrefois convict de meme felonie. (53) Thus, at common law, "if a person has, on a prior occasion (autrefois) been acquitted or convicted of the exact same crime (la meme felonie) with which he is now charged, he can plead the previous judgment as a bar to the second indictment." (54) Today, the common law pleas merge into a single plea of double jeopardy. (55) Ultimately, double jeopardy's past sheds light upon the policy and application of double jeopardy protections in current factual situations.

III. Fifth Amendment Double Jeopardy Clause

Similar to the English common law development, the boundaries of modern double jeopardy, as a concept, have expanded as criminal law statutes continue to multiply. One scholar surmised that double jeopardy "[p]recede[s] questions of substantive criminal law and become[s] more significant as the number of incriminat[ing] acts increase[s], and then only if other methods of restraining the prosecutor's discretion are inadequate." (56) The history of the Double Jeopardy Clause's development illustrates the rise of individual rights in an effort to contain the power of the state. This creates a tension when resolving double jeopardy issues between the power of the state to select and impose punishment and the rights of the individual to finality. In order to resolve this tension, it is important to consider the policy rationale and underlying purposes of the protection against double jeopardy.

Ultimately, the "moral sentiment which double jeopardy exemplifies is the feeling that no man should suffer twice for a single act." (57) This principled belief confuses lay persons who erroneously believe that any unfavorable action taken against them will result in a complete bar of future adverse consequences arising out of the same incident. Unfortunately, while finality as a whole is engrained as an individual right rooted in fundamental fairness, the legal purpose of jeopardy is to protect a defendant from obsessive criminal prosecution, not all adverse actions taken by a sovereign, such as employment decisions made as a consequence of an employee's criminal acts. (58) However, within the penal system itself, the courts must enforce the policies inherent in the double jeopardy protection if the legislature fails to act to define criminal acts or punishments appropriately. (59)

A. Purpose and Policy

Double jeopardy is said to protect an accused against a second prosecution or conviction for the same offense or to protect an accused against multiple punishments for the same offense. (60) However, this statement is of no assistance to the practitioner because it only reiterates the text of the Fifth Amendment in terms less poetic than those found in the Constitution itself. Thus, one must search further for a deeper understanding of the rationale for this special protection.

One scholar pronounced, "[T]he purpose of double jeopardy policy is to restrict the prosecution by applying judicial standards of interpretation of legislative intent, even in the absence of any actual intent." (61) This statement gets to the root of the issue: double jeopardy exists as a rule of finality in criminal cases. (62) In order to achieve this finality, courts must interpret the substantive criminal law in a manner that ensures a given defendant is not receiving a windfall by escaping conviction for a crime that is not the "same" as the one for which he previously stood trial. (63) Thus, courts must establish rules of statutory construction aimed at balancing these interests. However, in the end, the rule seeks the policy succinctly summarized in Green v. United States:
      The constitutional prohibition against
   "double jeopardy" was designed to protect
   an individual from being subjected to the
   hazards of trial and possible conviction
   more than once for an alleged offense.

   ...

      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, thereby subjecting him to
   embarrassment, expense and ordeal and
   compelling him to live in a continuing
   state of anxiety and insecurity, as well as
   enhancing the possibility that even though
   innocent he may be found guilty. (64)


At its core, the policy attempts to protect the innocent from being wrongfully convicted from multiple prosecutorial attempts. (65) At the same time, the policy acknowledges that even those guilty of committing a criminal act need repose because of the stress and strain involved in mounting an adequate criminal defense. (66)

Therefore, several aims become apparent. First, recognition of the double jeopardy protection makes the "status" of an acquittal significant, minimizing convictions of innocent persons. (67) Second, double jeopardy forces the state, represented by the prosecutor (and in the military, the convening authority), to accept decisions of factfinders on verdicts and punishment. (68) Third, the protection strives to prevent unnecessary suffering and harassment of criminal litigants caused by multiple prosecutions, (69) sparing defendants the burden of a second trial. (70) This rationale requires some level of overreaching conduct by the prosecution and prejudice to the defendant. (71) Ultimately, the policy attempts to discourage bad faith and arbitrary prosecutorial decision-making. (72) Fourth, an effect of this protection is a net cost savings for the public because it reduces or eliminates redundant litigation. (73) Fifth, it enhances the due process rights of a criminal defendant because it prevents the state from obtaining a sneak peak at the defense's case prior to adequate trial preparation, eliminating the prosecutorial "dry run." (74) Finally, double jeopardy acts as a shield protecting an accused's "valued right to have his trial completed by a particular tribunal." (75) Thus, once begun, a defendant has a right "to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate." (76)

Accordingly, while expressed as a rule of finality, double jeopardy is more than res judicata; it is an affirmative attempt to level the playing field and create parity between the Government and the defendant in the criminal justice system. (77) In this fashion, "[the] idea underlying double jeopardy [is that the] ... Government should not structure the adjudication game so that it is 'heads we win; tails let's play again until you lose; then let's quit (unless we want to play again).'" (78)

B. Application

If the purpose of the Fifth Amendment Double Jeopardy Clause is to create parity by establishing a set of rules for the "game" of criminal litigation, two questions arise. First, what are the boundaries of those rules? Second, what factual situations arise where the rules apply? Several key cases applying modern double jeopardy law answer these two questions under the most common circumstances.

The historical development of double jeopardy at common law reveals that the breadth of the clause's applicability is set by the phrase "life or limb." While the scope of the phrase was uncertain at one time, it is clear that "life or limb" now applies to any criminal offense. (79) In effect, it is nothing more than a "poetic metaphor for all criminal punishment." (80) While broad, the phrase does have limiting characteristics. For instance, while it applies double jeopardy to criminal prosecutions, administrative and civil actions escape the bounds of jeopardy's application, relying on other finality rules such as res judicata. The rationale seems obvious: in terms of equalizing the relationship of the parties, finality is most important in criminal cases because liberty, rather than money, is at stake. (81)

As a result of the "life or limb" limitation of double jeopardy protections to criminal prosecutions, three principal factual situations recur in double jeopardy jurisprudence. (82) The first is cases where two governmental entities seek to try an accused for a violation of their criminal laws arising out of the same facts and circumstances. (83) Second is cases where an accused is acquitted or convicted, at trial, and the Government seeks to indict on a different charge or another offense, potentially even a greater or lesser offense, arising out of the same facts and circumstances as those proven at the original trial. (84) The final scenario arises in the case where a trial, after beginning on the merits, is stopped, for one reason or another, prior to termination by a verdict of acquittal or conviction. (85)

The first category is commonly referred to as the "dual sovereignty" exception to double jeopardy, and it originated in international law. (86) This exception holds that each sovereign has the right to punish, as appropriate, those who violate their criminal laws. Accordingly, the actions of one sovereign should not act to bind the hands of another. (87)

The second category arises directly from the language of the Double Jeopardy Clause. The Fifth Amendment protection only bars a second prosecution if and when an accused is retried for the "same offense." Although this language is simple, courts have struggled with the clause's application. The difficulty arises due to the increased number of criminal statutes, in modern times, requiring a determination of legislative intent regarding individual culpability for any given set of facts. (88)

Consequently, this has resulted in attempts to resolve what constitutes the "same offense" using judicially created tests. (89) Historically, courts fashioned and applied the "law and fact" test. Under this test, a crime had to be the same in both law and fact for the Double Jeopardy Clause to protect an accused from subsequent prosecution after a prior conviction or acquittal. (90) This test developed from strict pleading standards in English common law. (91) The intent of the test was to ensure the accused is convicted of each act that itself violates a criminal statute. (92) This likely developed as a restrictive test that prevented the application of double jeopardy in many factual situations because of the severe restriction at English common law of joining offenses in a single trial. (93) While easy to state, this test is difficult to apply, prompting one commentator to describe it as, "almost formless and consequently of little value." (94)

The "law and fact" test was first applied in the case of Commonwealth v. Roby (95) There the court attempted to determine whether a former trespass conviction (96) barred a prosecution for murder when the victim died after the trespass conviction. (97) After an extensive historical analysis, the court relied upon the English common law test laid out in Rex v. Vandercomb. (98) The Court held that "unless the first indictment were such as the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second." (99) If this test failed, then the offense charged was not "the same in law and in fact." (100) The "law and fact" test took root in the United States as a means for determining whether a previous acquittal or conviction was the "same offense" for purposes of a double jeopardy analysis. (101)

Over time, the conclusion that offenses were not the same in "law and fact" led the courts to flesh out the actual meaning of this ineffectual test. The Supreme Court fashioned a more workable solution declaring,
   The test is not whether the defendant has
   already been tried for the same act, but
   whether he has been put in jeopardy for
   the same offense. A single act may be an

   offense against two statutes; and if each
   statute requires proof of an additional fact
   which the other does not, an acquittal or
   conviction under either statute does not
   exempt the defendant from prosecution
   and punishment under the other. (102)


This test took root, solving the application problem for lower courts, and was reiterated in Blockburger v. United States as the standard for determining if two offenses are the "same" for double jeopardy purposes. (103) The settled test for double jeopardy purposes became the "same evidence" or "distinct elements" test. (104) Currently, prosecutors must look to the elements to determine whether one statute requires proof of facts which the other does not. (105)

The application of this test, coupled with other criminal procedure doctrines, establishes some general rules for practitioners. First, a lesser-included offense, in most circumstances, is the "same offense" as the greater in applying the Double Jeopardy Clause. (106) Thus, acquittal or conviction for a lesser offense will bar a subsequent prosecution for the greater offense. (107) Second, a conviction of a lesser-included offense when the greater offense is at issue is considered an implicit acquittal of the greater and bars subsequent prosecution of the greater offense, even if the case is retried after appeal on the lesser offense. (108) Finally, collateral estoppel, a component of double jeopardy, bars a trial on other, similar charges after an acquittal or an implied acquittal even if they are not the "same offense," provided that the accused is "acquitted" of certain facts. (109) This is to protect the sanctity of an acquittal and the policy behind the Double Jeopardy Clause. Without this component, under the Blockburger test, the Government could continue to prosecute a defendant with slightly different crimes until it secured a conviction--despite previous acquittals--in flagrant violation of the policy underpinnings of the Double Jeopardy Clause. (110)

In addition to the dual sovereignty exception and "same offense" determination, the third scenario focuses on what "twice in jeopardy" means. The concept is broken into two distinct issues. First, when does jeopardy attach? Second, after it attaches, what action bars a subsequent prosecution? One scholar explained the issue of "twice in jeopardy" as follows: "Although courts often speak of when jeopardy attaches, this attachment metaphor misleads to the extent that it implies that there is one key moment rather than two. Jeopardy is a process--like any other game--and we thus must ask when it begins and when it ends." (111)

Historically, the English rule at common law was that a "final verdict is required before jeopardy can be said to begin." (112) Thus, attachment was not an issue because an acquittal or conviction was required to constitute a prior jeopardy. (113) In other words, any termination of a criminal proceeding prior to a verdict allowed the prosecution to retry the defendant, regardless of the cause, without offending the Double Jeopardy Clause. Early American cases followed this approach. As Justice Washington stated, jeopardy is "nothing short of the acquittal or conviction of the prisoner and the judgment of the court thereupon." (114)

Due to the policy rationale for double jeopardy's protection and the nature of the protection as a fundamental right in the Constitution, the question arose as to "whether a prior uncompleted trial had reached such a degree of maturation as to amount to a 'jeopardy.'" (115) As stated, this question was easily resolved at common law, but a divergence from the common law began in America where the courts recognized a "wide difference between a verdict given and the jeopardy of a verdict." (116) Thus, the British common law rule was rejected in American courts. (117)

Once a policy determination is made that termination of a trial proceeding prior to a verdict triggers jeopardy protections, a rule must develop to properly balance the rights and risk of a defendant versus the ability of the state and community to hold criminals accountable. Therefore, the concept of attachment arose as a judicial determination that there was a sufficient amount of risk at a previous trial that a defendant should, in certain circumstances, receive the protections of double jeopardy's bar to subsequent prosecution. (118) Consequently, if jeopardy does not attach, then the prior trial never legally occurred. (119) Unfortunately, the balancing of interests and the movement away from the easily applied rule at common law led one author to conclude that "the internal inconsistencies inherent in the doctrine of attachment are so great that they immediately give rise to qualifications and exceptions." (120)

Generally, jeopardy attaches in a jury trial when the jury is empanelled and sworn. (121) However, in a judge alone trial, jeopardy attaches when the court first begins to hear evidence. (122) Ordinarily, once jeopardy attaches, the Double Jeopardy Clause will only bar retrial after a verdict. Furthermore, in order to protect an accused's right to have "his trial completed by a particular tribunal," an unnecessary termination of a trial prior to a verdict will impose a double jeopardy bar to successive prosecutions. In other words, necessity is required to declare a mistrial and terminate proceedings prior to a verdict. (123) Accordingly, "manifest necessity" for termination prior to a verdict acts as an exception to the attachment rule, allowing retrial of the defendant. (124) In addition to necessity, consent of the defendant, as occurs when the defense requests a mistrial, operates to prevent a double jeopardy bar in a subsequent proceeding. (125) Nevertheless, even with consent, the prosecutor cannot act in a manner that provokes the defense into requesting a mistrial. (126) So, the attachment rules serve the fundamental policy rationale of the Fifth Amendment protection by preventing the prosecutor from using the case as a trial run, terminating the proceedings due to poor preparation, or intentionally causing a mistrial. (127)

The attachment issue also arises when trial is terminated early due to dismissal of charges rather than a declaration of mistrial or a retrial of an accused subsequent to a meritorious appeal. Originally, a defendant's voluntary appeal did not prevent a retrial upon reversal based on the early belief that the ability to appeal was tied to the accused's "waiver" of his double jeopardy rights. (128) The Court put the accused into a choice which "forces the defendant to choose to accept a lesser penalty or to enter an appeal and take the risk that the second charge might be much more serious." (129) Other justices rationalized the lack of a bar in the appellate setting under the concept that the retrial was merely part of a continuing jeopardy from the attachment at the original trial. (130) Currently, the Court has abandoned this logic, stating, (131) "[t]o condition an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another, however, conflicts with the constitutional bar against double jeopardy." (132) Thus, double jeopardy policy is not implicated when an accused chooses to appeal and gains the benefit of a new trial. (133)

Similarly, a dismissal prior to a verdict, even if after attachment, does not prevent a Government appeal or subsequent retrial of the accused. (134) The Court, discussing the balancing of related interests and the policy of the Double Jeopardy Clause, explained its rationale stating,
   We think that in a case such as this the
   defendant, by deliberately choosing to
   seek termination of the proceedings
   against him on a basis unrelated to factual
   guilt or innocence of the offense of which
   he is accused, suffers no injury cognizable
   under the Double Jeopardy Clause if the
   Government is permitted to appeal from
   such a ruling of the trial court in favor of
   the defendant. We do not thereby adopt the
   doctrine of "waiver" of double jeopardy....
   Rather, we conclude that the Double
   Jeopardy Clause, which guards against
   Government oppression, does not relieve a
   defendant from the consequences of his
   voluntary choice (135)


Finally, any double jeopardy analysis is incomplete without an understanding of collateral estoppel. (136) Collateral estoppel is the requirement "that the determination of a question of fact essential to the judgment of a previous trial should be conclusive in a subsequent trial involving the same parties and the same facts." (137) This concept protects the province of the factfinder. Accordingly, once acquitted, collateral estoppel prevents the Government from using the concepts of double jeopardy law to charge a client with a similar but different offense in order to secure a conviction when resolutions of similar facts are required. For instance, if a defendant is charged and acquitted of murdering one of two individuals at a certain time and place based on an alibi defense, the Government cannot try the accused for the other murder since the factfinder made a conclusive finding at the first trial based on alibi.

The practical effect of applying the Fifth Amendment Double Jeopardy Clause to courts-martial is that nearly every factual situation where double jeopardy principles are implicated can be resolved under the general rules of the current constitutional framework. This is why military appellate tribunals state that Article 44 provides the same protection to defendants as the Fifth Amendment or fail to articulate the specific legal basis for their double jeopardy holdings. (138) While the premise that Article 44 and the Fifth Amendment provide parallel or twin protections is, generally speaking, a good guiding principle, the history, formation, and policy of Article 44's enactment demonstrate the potential for conflict in extreme situations.

IV. Article 44, UCMJ

Prior to the 1949 decision in Wade v. Hunter, (139) military justice practitioners were unsure whether the Fifth Amendment applied to courts-martial. (140) For that reason, the drafters of the UCMJ chose to afford servicemembers a statutory double jeopardy protection reminiscent that found in the Articles of War. (141) As such, the UCMJ, when signed into law in 1951, included Article 44, entitled Former Jeopardy, stating, (a) No person may, without his consent, be tried a second time for the same offense.

(b) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.

(c) A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this article. (142)

The end result was the enactment of a statutory double jeopardy protection necessary for the UCMJ's automatic appellate system which attempted to codify the Court's holding in Wade.

A. History

Article 44 is derived from Article of War 40. (143) In fact, Article 44(a) and (b) nearly duplicate the language of the original Article of War. However, Article 44(c) was added during the passage of the UCMJ, completing the current statutory former jeopardy framework. Unlike the Fifth Amendment, Article 44's framework adopts the concept of "continuing jeopardy" originally proposed by Justice Holmes. (144) The legislative history of Article 44(b) illustrates a troubling consequence of this concept:
   Now, article of war 40 says that a man
   shall not be tried twice for the same
   offense, but that a trial is defined as the
   proceedings before a court, plus the
   approval of the reviewing authority, and
   that there is not a trial until the reviewing
   authority acts, and so, by applying that
   literally, you reach the conclusion that
   until the reviewing authority acts, a man
   can be tried any number of times. (145)


While Article 44(a) seems to reiterate the concept of double jeopardy embodied in the Fifth Amendment, the statutory scheme of Article 44 as a whole illustrates that the historical development of double jeopardy in military law is different than that found in the Constitution. The primary reason for this difference is one of the innovative protections contained in military criminal law's framework: the automatic right of appeal. Unlike civilian criminal law systems, the court-martial system provides additional protections for all accused servicemembers through the provision of an automatic appeal.

Because the UCMJ drafters believed that the automatic appeal system was the ultimate protection afforded an accused, especially in a system controlled by military commanders, they created a complicated, multilayered, statutory system designed to execute their intent. The framework includes Articles 44, 62, 63, 66 and 69. Because these statutes operate collectively and in sync, they must be read together for insight into the policy protections provided to servicemembers. (146) These statutes ensure appellate review occurs automatically as an additional protection against unlawful command influence, protecting the rights of servicemembers from the perceived abuses and lack of due process in past court-martial cases. This rationale is found in the legislative history:
   A rehearing can be ordered. That is
   the language we use, but no man can be
   convicted of any offense at the rehearing
   of which he was not convicted before, and
   he cannot be punished any more severely....

   ....

   The purpose of it, however, was to
   prevent a situation where an obviously
   guilty man would escape punishment on a
   technicality. He has every protection, and
   he cannot be punished any more severely
   and cannot be convicted of any offense
   which he was not convicted before unless
   you have a new set of charges and a new
   investigation and consolidate the two
   cases. (147)


The constant concerns over the feasibility of the automatic appeal system led to the drafter's belief that a complimentary but different jeopardy system was required in military law. (148) Since the accused was not electing to have his case reviewed, the UCMJ architects felt the language in Article 44(b) was necessary to ensure the automatic appellate system was workable. (149) Inherent in designer's concerns for Article 44 was the prevailing view at the time, based on Fifth Amendment jurisprudence, that double jeopardy only authorized rehearings after successful appeal because the accused "waived" his double jeopardy rights by voluntarily appealing his case. (150)

Based on these concerns, the drafters turned to the structure of the Articles of War. Therefore, Article 44(a) and (b)'s language "envisages only the old common law pleas of former acquittal and former conviction[, autrefois acquit and autrefois convict,] and it did not consider the modern doctrine that jeopardy can attach before verdict or findings." (151) As a result, Article 44 is jeopardy in its pure common law form, requiring a verdict before jeopardy "attaches" or one is actually in jeopardy of being punished or tried twice for the same offense. (152) This idea was criticized extensively in that
   [i]t keeps only 'autre fois acquit; autre fois
   convict'--the old common law idea that
   there had to be a verdict before jeopardy
   could attach.

   That is, a man had to be acquitted or he
   had to be convicted before he could plead.
   We know that that is not the law under the
   fifth amendment today--that jeopardy can
   attach in our civil courts as soon as the
   jury is sworn and the first witness sworn.

   And yet the military courts have attempted
   to perpetuate that archaic rule. (153)


Felix Larkin, the executive secretary of the drafting committee, responded to the criticism that the language was contrary to current law by asserting, "I would not say that it [Article 44's language] is not at variance with the present military law. But the military law has been at variance with the general civil law." (154)

Due to these concerns, Congress recognized that the language adopted from the prior Articles of War needed updating in order to allow for some jeopardy protections prior to findings. Primarily, Congress was concerned with the potential for abuse exhibited by the case of Wade v. Hunter. (155) In Wade, two German women in Krov, Germany, were raped by two men in American uniforms on 13 March 1945. (156) Two weeks later, Wade and another American Soldier were tried by general court-martial. (157) After hearing evidence, the court closed for deliberation, but announced that the trial would be continued in order to take testimony from other witnesses unavailable before rendering findings. (158) Later, the convening authority withdrew the charges and requested transfer to another convening authority, stating,
   The case was previously referred for trial
   by general court-martial and trial was
   commenced. Two witnesses, the mother
   and father of the victim of the alleged
   rape, were unable to be present due to
   sickness, and the Court continued the case
   so that their testimony could be obtained.
   Due to the tactical situation the distance to
   the residence of such witnesses has
   become so great that the case cannot be
   completed within a reasonable time. (159)


After this action, a new convening authority referred the case to another court-martial and Wade filed a plea in bar with the court, arguing that double jeopardy prevented continuation of the trial. (160) The trial court ruled against Wade and he was subsequently convicted. After several years, his appeal reached the Supreme Court. (161) Ultimately, the Supreme Court held that double jeopardy did not bar the subsequent trial. Because the court-martial ended prior to a finding, according to the Court, the first trial was terminated due to "manifest necessity. (162)

Due to the publicity surrounding Wade, Congress was concerned that Article of War 40 did not address trial terminations by the convening authority due to lack of counsel preparation. In discussing the facts of the case, prior to the Supreme Court's decision, the legislative history states,
   But the court ... asked for additional
   testimony. In Federal court a district
   attorney must have his witnesses in court
   at his peril.

   He cannot go ahead and try a lawsuit and
   put a man in the penitentiary and then,
   when he sees he is going to get licked,
   nolle prose his case and them come back
   and take a second bite. (163)


Ultimately, the compromise was the addition of Article 44(c). By adding the final section to Article 44, Congress attempted to prevent a Wade v. Hunter scenario in the future. (164) Thus, it appears, Article of War 40's language was amended in an attempt to apply jeopardy in a fashion similar to civilian courts. The consequence of Article 44(c) is that Article 44 bars re-prosecution where the court-martial is terminated because the prosecution is unprepared. (165) This is in keeping with the double jeopardy policy goals: preventing unnecessary suffering and harassment of criminal litigants caused by multiple prosecutions, (166) preventing the state from obtaining a sneak peek at the defense's case, (167) protecting an accused's "valued right to have his trial completed by a particular tribunal." (168)

B. Policy

Viewing the history and text of Article 44, it is apparent that the statute serves the same policies as those of the Fifth Amendment Double Jeopardy Clause. (169) However, because of the inherent differences in the military justice system's appellate process, including a servicemember's right to an automatic appeal and the public policy that prevents the waiver of this right in plea bargaining, (170) Article 44 aims to provide additional safeguards--the absolute protection from any harm coming to an accused on appeal. (171) Unlike Article III appellate courts, the Court of Criminal Appeals "provides a de novo trial on the record at appellate level, with full authority to disbelieve the witnesses, determine issues of fact, approve or disapprove findings of guilty, and, within the limits set by the sentence approved below, to judge the appropriateness of the accused's punishment." (172) The differences in power and procedure at the appellate level give rise to differing interpretations of the application of double jeopardy to servicemembers and thus, the need for statutory protection under Article 44.

But for Article 44, an accused has no statutory protection from abusive and vindictive actions of the command or prosecutors in a system of automatic appeal. Succinctly put,
   In military judicial procedure automatic
   consideration by a board of review is
   provided. Since there is no provision for
   appeal to this intermediate tribunal by an
   accused, no notion of waiver, strictly
   speaking, is available to sustain
   "prosecution appeals"--that is,
   certifications by a service Judge Advocate
   General. However, action by a board of
   review is always taken on behalf of an
   accused and in his interest. Literally he can
   never be prejudiced by this appellate
   review--for on retrial, if any, he cannot be
   tried for an offense greater than that
   charged at the first trial, nor can he receive
   a sentence greater than that adjudged at the
   first trial. Since prejudice is impossible
   under this procedure, the evils
   contemplated by and even prompting the
   guaranty against double jeopardy are
   entirely inoperative. (173)


Along these lines, Congress's intent behind forcing an automatic appeal right, granting broad fact finding powers to the Court of Criminal Appeals, and requiring an affirmative waiver of these rights in writing, was to benefit the accused. By doing so, the courts protect the constitutional right against double jeopardy by preventing an accused from being "harmed" by this system of automatic appeal. (174) One mechanism to protect against such a situation was the congressional enactment of Article 44 to protect servicemembers from such a violation of their right against double jeopardy.

C. Application

Putting the Article 44 framework together illustrates that the statutory double jeopardy protection contained in Article 44 is a modified version of common law double jeopardy prohibitions with the additional policy goal of ensuring that an accused should never be harmed by the military appellate process. (175) In effect, "Congress has provided a double jeopardy protection for military personnel tried under the Uniform Code of Military Justice, but it has stipulated that only final judgments would have the effect of prior jeopardy." (176)

Military double jeopardy case law suggests that Article 44 is broader than the strict common law concept of double jeopardy intended by the UCMJ drafters. For instance, the Court of Military Appeals has on one occasion stated that jeopardy attaches at the reception of evidence on the general issue of guilt or innocence. (177) However, most of the military case law in this area fails to articulate which specific double jeopardy protection--the Fifth Amendment or Article 44--forms the basis of their holding. In fact, a strict reading of Article 44(c) in conjunction with Article 44(a) leads to the conclusion that there is some form of a limited "attachment" right allowing a jeopardy bar prior to a verdict in some cases. (178) Nevertheless, Article 44's common law conception of jeopardy is still likely the best way to view and apply this protection in light of legislative history, while keeping in mind the added policy rationale for the statute itself.

At least one legal text has suggested that, because of the differences in the application of Article 44 and the Fifth Amendment, these two provisions may apply differently in different factual scenarios. (179) Professors Gilligan and Lederer's analysis of Article 44's legislative history suggests that the statute is different than the current constitutional interpretation of the Fifth Amendment. Because the framers of the UCMJ intended to protect rights similar to the interpretation of the Double Jeopardy Clause in the 1950's, "it may be that the Uniform Code, with its prohibition on trying the accused a second time for the same offense, is substantially more protective than the Constitution. As a result, ... it may well be that Article 44 is more protective of the accused." (180)

In view of this, Article 44 must be applied and analyzed separately in a given factual situation. Article 44(a) prevents an accused from being "tried a second time for the same offense." (181) Article 44(b) and (c), however, define "trial" for purposes of Article 44(a). In the seminal case of United States v. Ivory, (182) the Court of Military Appeals conducted an extensive analysis of Article 44. Applying this statute, the court held that while the mandate of Article 44(a) is clear, the rule's application is governed by how trial is defined in Article 44(b) and (c). (183) Looking at the history of Article 44, the court recognized that "[i]n enacting this Article, members of Congress considered two practices peculiar to the Armed Forces which they felt should be explicitly covered by statute." (184)

Article 44(b) address the first policy related to the military's appellate system. The court noted that Article 44 protected an accused's appellate rights based on the military's system of automatic appeal. (185) Presuming that an accused waived his double jeopardy rights by appealing in the civilian appellate system, the court recognized that Congress's intent behind Article 44(b) was to ensure a valid rehearing under the military's automatic review system. (186) Ultimately, the court surmised that Congress wanted to benefit an accused by setting up an automatic review system to eliminate trial errors and prevent unlawful command influence. (187) In discussing Article 44(b) the court stated,
   The theory behind this provision is
   obvious. Pretermitting the safeguards
   cloaking sentences, which are
   not presently involved, if an accused is
   initially found guilty, he can never be
   convicted of a degree of an offense greater
   than that returned by the original court-martial.
   Consequently, an accused who,
   after being convicted, is subjected to
   retrial for the same offense of which he
   was previously found guilty can never be
   prejudiced. The only change which can be
   made to his status would be a reduction in
   the degree of the offense from the findings
   of the original court-martial. (188)


The second policy addressed by Article 44(c) was the Wade scenario. (189) Here the court recognized that Article 44(c) "was designed to prevent a convening authority from affording the Government a second opportunity to convict an accused by dismissing a court before findings if he felt that the prosecution had not adequately proved its case and the trial might result in an acquittal." (190) Thus, Congress as a matter of fairness to individual defendants wanted to ensure that the Government could not end a trial due to a lack of preparation in order to seek additional evidence to ensure a conviction. (191)

Thus, Article 44 provides an independent double jeopardy bar in addition to that contained in the Fifth Amendment. While the Fifth Amendment focuses on the core notion of finality, Article 44 complements these core polices with the guiding principle that an accused should come to no harm in an automatic appellate system. Because the clause operates differently and focuses on additional policies, in certain cases, Article 44 may provide greater protections. This is especially true in cases where Article 44's additional policies are implicated as in a Diaz factual scenario, (192) policies not addressed or protected by the Fifth Amendment.

V. The Diaz "Exception"

As stated above, it is clear that, under the Fifth Amendment a conviction will bar subsequent prosecution for the "same offense." The Supreme Court in Brown v. Ohio, applying the concepts of the lesser-included offense doctrine and the Blockburger test, held that double jeopardy prevented the subsequent prosecution for a greater offense when the accused stood convicted of a lesser-included offense. (193) This rule applies regardless of whether the defendant seeks protection under the double jeopardy provisions of the Fifth Amendment or Article 44. But what if an accused is tried and convicted for an assault offense prior to the death of the victim and subsequently the victim dies? Taken literally, the Blockburger test, defining same offenses, bars prosecution of the defendant for the victim's death. (194) Therefore, in United States v. Diaz, the Supreme Court crafted an exception allowing prosecution in such a case. (195)

Gabriel Diaz was accused of assaulting "by blows and kicks" a man named Alcanzaren on 30 May 1906. (196) The day following the attack, he was charged with assault and battery. (197) He was found guilty of misdemeanor battery and fined fifty pesetas and costs. (198) Subsequent to Diaz's conviction, Alcanzaren died on 26 June 1906. (199) Diaz was then charged with homicide. (200) At his murder trial, Diaz pled former jeopardy claiming that the original misdemeanor conviction barred the second prosecution for murder. (201) In finding the Philippine double jeopardy statute did not bar the ensuing murder prosecution, the Supreme Court held:
   The provision against double jeopardy ...
   is in terms restricted to instances where the
   second jeopardy is 'for the same offense'
   as was the first. That was not the case
   here. The homicide charged against the
   accused in the court of first instance and
   the assault and battery for which he was
   tried before the justice of the peace
   although identical in some of their
   elements, were distinct offenses both in
   law and in fact. The death of the injured
   person was the principal element of the
   homicide, but was no part of the assault
   and battery. At the time of the trial for the
   latter the death had not ensued, and not
   until it did ensue was the homicide
   committed. Then, and not before, was it
   possible to put the accused in jeopardy for
   that offense. (202)


Since 1912, the Supreme Court has consistently upheld this double jeopardy "exception" in dicta and footnotes. (203) For instance, in Blackledge v. Perry, the Supreme Court held that a prosecutor was presumptively vindictive for bringing a more serious charge against an accused solely for the invocation of his statutory right to appeal. (204) In a footnote to the holding the court stated, "[t]his would clearly be a different case if the State had shown that it was impossible to proceed on the more serious charge at the outset, as in Diaz v. United States." (205) Additionally, in Brown v. Ohio, holding that successive prosecutions for greater and lesser offenses are barred by double jeopardy, (206) the Court limited its holding in a footnote stating, "[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." (207)

While Diaz was decided many years before Blockburger, the exception "still lives." (208) The Court expanded the holding in Garrett v. United States, (209) the first case to specifically apply Diaz since 1912. There, the Court held that prosecution under the continuing criminal enterprise (CCE) statute was not barred by double jeopardy even though the statute required proof of a predicate felony for which the accused was previously convicted. The Court's rationale hinged on the fact that "[q]uite obviously the CCE offense is not, in any common-sense or literal meaning of the term, the 'same' offense as one of the predicate offenses." (210) Relying, by analogy, on Diaz, the Court concluded that the CCE was not complete at the time the original prosecution for the predicate offense occurred. (211) In a concurring opinion, Justice O'Connor went even further, relying on Diaz for the conclusion that "successive prosecution on a greater offense may be permitted where justified by the public interest in law enforcement and the absence of prosecutorial overreaching." (212)

Based on this jurisprudence, it is difficult to determine the impact of Diaz. One commentator has suggested that "[r]ead narrowly, Diaz only applies when the greater offense has not occurred at the time of the first trial." (213) However, Brown suggests that the inability of the prosecution to discover the greater offense due to "due diligence" may be enough. (214)

Thus, the question arises: Is the Diaz holding an exception to the rule or definitional exemption to the same offense doctrine? (215) The expansion of the holding beginning with Brown and Garrett suggests this is an exception, opposed to a definitional exemption under Blockburger. (216) If viewed as an exception, the Diaz rule would only apply under facts similar to those found in Diaz, acting as an exception to the general rule announced in Brown v. Ohio. Thus, the exception would only apply in an autrefois convict factual scenario where the accused was convicted on a lesser offense but the victim dies after the trial and the prosecution seeks to try the accused for the greater offense. If viewed as a definitional exemption, the Diaz rule means that in cases where the victim dies after the first trial, the two crimes are not the "same offense" for double jeopardy purposes. In this case, the rule would apply equally to an autrefois convict and autrefois acquit factual scenario, expanding the reach of the Diaz holding.

While no military case has applied Diaz, United States v. Hayes resolves a similar set of facts. Nevertheless, Hayes's holding is contrary to Diaz. (217) In that case, the accused pled guilty to one specification of Absence Without Leave (AWOL), in violation of Article 86, from 1 May 1953 until 11 June 1953. (218) At initial action the convening authority published the following:
   In the foregoing case of Donald Eugene
   Hayes, aviation machinist's mate airman,
   U. S. Navy, the service record reveals that
   Hayes was an unauthorized absentee from
   the naval service from 1 May 1952 to 11
   June 1953 rather than from 1 May 1953 to
   11 June 1953 as charged in the
   specification. The sentence is disapproved
   and the charge of unauthorized absence
   from 1 May 1953 to 11 June 1953 is
   dismissed in order that appropriate
   disciplinary action may be taken for the
   complete period of absence. (219)


Clearly, the convening authority discovered that the accused was AWOL for a longer period of time after the trial but prior to action. After the action was published, the accused was court-martialed again for desertion, in violation of Article 85, for a longer period of absence. On appellate review, the Court held that Article 44 barred re-prosecution because
   [w]e are of opinion that in the
   circumstances disclosed by this record the
   convening authority in effect "terminated"
   the proceedings in order to start afresh
   with disciplinary action which he
   considered more appropriate to his post-trial
   determination from entries in the
   service record of the accused; that this
   "termination" and "dismissal" was without
   any fault of the accused; and that the
   language of Article 44, UCMJ, interpreted
   in light of the discussion in MCM, 1951,
   68d, and the provisions relating to
   reconsideration and revision in Article 62,
   UCMJ, [sic] does not include authorization
   for the action taken by the convening
   authority in this case. (220)


The Court came to that conclusion because the convening authority's purpose was "patently to increase the severity of the punishment to be imposed on the accused." (221) In the military, it appears that once an accused has been tried for a lesser offense, they cannot be tried for the greater offense that differs from the lesser offense in degree only under Article 44. (222)

While the Diaz "exception" seems simple to state and apply, the application of the exception in a court-martial is complicated by the additional statutory protection provided by Article 44. Clearly, in the majority of cases, Article 44 and the Fifth Amendment Double Jeopardy Clause provide equal protections. A closer look at these two provisions in a Diaz factual scenario reveals a more complicated interplay. As a result, it is important to analyze discrete periods of time under both protections to determine, how each operates. In the end, it is possible that in a Diaz-type factual situation, depending on the procedural posture of the case, Article 44 may prevent the Diaz "exception" from applying.

VI. Mixing the Witches' Brew

Given the analytical framework for both protections, this section explores the interplay between the dual double jeopardy shields provided servicemembers by applying them to factual situations in various procedural postures. For purposes of evaluating these protections, assume that an accused assaults another person, the victim, and the victim later dies as a result of the injuries sustained from the original assault. This is a factual situation similar to that found in Diaz. The resulting analysis will depend upon the timing of the victim's death in relation to the original verdict and the procedural posture of the case. On balance, Article 44 will, at minimum, operate as a procedural double jeopardy bar if the victim dies prior to final action but after trial begins.

A. The Independent Ground: Abrogation

Regardless of the timing of the victim's death in relation to the procedural posture of the case, as alluded to, an independent ground for greater statutory protection may exist based on the timing of enactment of Article of War 40, the precursor to Article 44. If so, this basis prevents application of Diaz in the military, absent specific statutory authority. Thus, the first rationale for greater protection under Article 44 in a Diaz factual scenario is that the Diaz case does not apply to Article 44. This argument is based on the passage of Article 44 itself and is independent of the timing of the victim's death.

Article 44's former jeopardy bar is based on the language of Article of War 40. The original statute was part of the 1920 Articles of War applicable to the U.S. Army and was passed after the 1912 holding in Diaz. Because the statute was passed after Diaz, and the legislature is presumed to have knowledge of the holding at the time of its passing, one argument for enhanced protection under Article 44 is that the enactment of the statute without express mention of the exception abrogates this exception under Article 44. Thus, the fact that the statute was later in time suggests that Congress intended that a Diaz exception would not be a basis for the Government to charge a servicemember with a greater offense if faced with facts similar to those of Diaz.

Three facts that distinguish military law from criminal law in civilian courts support this rationale. First, military courts are courts of limited jurisdiction intended to enforce good order and discipline in the armed forces through the application of criminal sanctions and punishment. Second, abrogation of the Diaz exception supports the policy, found in the UCMJ's legislative history, that a servicemember should not be harmed by appealing his case in a system of automatic appeals. (223) Finally, the accused is typically discharged, severing military jurisdiction, at the time of final action. Since, under Article 44, this is the end of the trial and the time period when jeopardy "attaches," imposing the former jeopardy bar, there is less need for such an exception in military law. Therefore, it merely prevents re-prosecution in a court-martial for the greater offense.

Some might disagree, contending that the abrogation argument puts the Government in the position of delaying prosecution in a case where a person is severely assaulted to determine if he will die, in order to hold him accountable for murder, or risk pursuing charges for a greater offense of murder by quickly disposing of the case under charges for aggravated assault. This argument suggests that any speedy disposition would then later bar a conviction for murder. While seemingly logical, this argument is flawed because it considers only one forum appropriate for criminal prosecution that of a court-martial. In effect, the lack of a Diaz exception at a court-martial does not prevent a subsequent trial of a servicemember in a state or federal court, it merely shifts the forum for the later prosecution. Thus, the abrogation argument does not lead to a conclusion that the servicemember is immunized from prosecution all together. The abrogation argument merely reiterates the military justice policy that a court-martial is not the appropriate forum under these circumstances.

In spite of Article 44's additional protections, the Department of Justice could prosecute the accused for the greater offense in any federal court of general jurisdiction as an appropriate forum, because the Fifth Amendment poses no bar in federal court. Assuming the Diaz exception does apply to military law, Article 44 still may insulate an accused from additional prosecution for a greater offense in some circumstances. Here the issue turns on the timing of the facts.

B. The Easy Case: Victim Dies Prior to Trial or After Final Action

With the exception of the abrogation argument, the resolution depends upon the timing of the victim's death and the procedural posture of the case. The first case, and the easiest to resolve, is a case where an accused assaults the victim and prior to the trial, the victim dies. At this juncture, no double jeopardy concepts are implicated. Since the trial has not begun there is no attachment of jeopardy under the Fifth Amendment. Additionally, since there is no final action, there is no former jeopardy bar under Article 44. Therefore, the Government can appropriately either dismiss the assault charge and prefer a charge of murder, or merely prefer an additional charge of murder.

The next factual scenario is also easily resolved. Here, assume that the accused is charged with and found guilty of aggravated assault of the victim. At the trial, the accused receives confinement but no discharge and the case proceeds to final action. After final action, the accused is not administratively discharged from the service, but remains on active duty. After final action, the victim dies as a result of the injuries from the original assault. Under these facts, the victim's death occurred after the accused's original conviction therefore the Diaz exception allows prosecution of the accused for the greater offense because the Fifth Amendment's Double Jeopardy Clause does not bar successive prosecution. Article 44 does not bar re-prosecution because the facts giving rise to the greater offense, the victim's death, did not occur until after final action.

If Diaz is viewed under a "same offense" theory, then the victim's death resulted in a new crime, murder. Since Article 44(a) only prevents a person from being "tried a second time for the same offense," there is no statutory bar to charging the accused with murder. If Diaz is viewed under an exception theory, Article 44 still imposes no bar. The original assault trial is complete under Article 44(b) because final action transpired prior to the death of the victim. Since Diaz operates as an exception to an autrefois convict scenario, the original assault conviction does not bar subsequent prosecution. Additionally, the policy rationale of protecting an accused from harm as a result of the military's automatic appellate review is not implicated because appellate review is complete at the time of final action. Furthermore, the exception is consistent with Diaz's policy, preventing an accused from escaping the culpability commensurate with his criminal acts, since his initial conduct placed the chain of events in motion which led to the victim's death.

However, even if Article 44 did bar a subsequent court-martial, again the accused could face trial in a federal district court. This scenario is more probable under these circumstances, because if the assault is egregious a punitive discharge is likely. Final action executes this discharge, terminating jurisdiction unless the accused's prison term outlasts the time it takes to exhaust his appeal. (224) Regardless, a forum is available to prevent the frustration of justice.

C. The Dilemma: Victim Dies After Acquittal

Other factual situations require a more complex analysis. For instance, suppose the accused is tried and acquitted of assault, but after acquittal the victim dies from injuries sustained in the assault. This could occur if the accused asserted an alibi/identification, self-defense, accident, or duress special defense at trial.

Here, re-prosecution may depend upon the theory of how Diaz applies. For instance, if the Diaz holding is viewed as a definitional exemption, then the crimes of assault and murder are not the "same offense" for double jeopardy purposes. This leads to the unusual result that the assault acquittal is not a bar to re-prosecution for murder under the Fifth Amendment. Additionally, Article 44(b) states that the trial is over at the time of the finding of not guilty. Thus, a statutory bar hinges on whether Article 44(a) prevents the subsequent prosecution. (225) If the assault and murder are not the "same offense," then an Article 44 analysis reaches the same conclusion as a Fifth Amendment analysis: separate crimes allow separate trials with no former jeopardy bar.

The principles underlying the collateral estoppel doctrine may possibly bar re-prosecution, but the rationale for that doctrine in criminal cases is based on double jeopardy principles, which are arguably not at play since the crimes are, by definition, separate offenses. (226) Additionally, if self-defense was the basis for the acquittal, collateral estoppel might not bar subsequent prosecution because the force used to defend against an attack must be reasonable and proportional to the force used by the attacker, here the victim. Thus, the force by the accused in the second prosecution is that causing death or grievously bodily harm, a greater amount than the factfinder may have considered in a simple battery prosecution at the original trial. Unfortunately, this definitional exemption view of Diaz's holding, in this scenario, does not seem to place adequate importance on the stature of an acquittal as that required under the law.

If the Diaz holding is viewed under the more modern theory--an exception to the rule announced in Brown--the result is different. Under this rationale, Diaz only exists as an exception to an autrefois convict scenario. Here, the basis for the bar is derived from the common law autrefois acquit plea at common law. As a consequence, the exception would not apply regardless of whether the bar arises under the Fifth Amendment or Article 44 concepts of double jeopardy, resulting in a bar to subsequent prosecution based on the original acquittal.

Today, the better view is that Diaz is an exception to the rule. If viewed as a definitional exemption, the valued right of an acquittal is not protected. (227) Again, opponents of this view might argue that the accused is still protected under the collateral estoppel concept, but this is a narrowly construed exception. (228) Additionally, collateral estoppel is based on the principles of double jeopardy, so if the crimes are not legally the "same offense" this concept should technically not apply.

A broad reading of Diaz, as Garrett and Brown suggest, demonstrates that the holding is more appropriately viewed as an exception to double jeopardy than a definition exemption (i.e., that is not the "same offense"). This may be the result of the shift in test from the common law concept of "law and fact" to Blockburger's elements test. (229) The "law and fact" test was formalistic. (230) Because of the strict requirements, a conviction or acquittal on a lesser offense would not bar a subsequent prosecution of a greater offense, or vice versa. (231) The harsh application of the rule made it unnecessary to create an exception in a Diaz factual scenario, because application of the "law and fact" test allows a subsequent prosecution. When Blockburger, as implemented in Brown, juxtaposed the concepts of double jeopardy and the lesser included defense doctrine, Diaz's holding transformed to an exception based on the development of the distinct elements test, a change necessary to maintain the end result enunciated in Diaz. Furthermore, the exception rationale comports with the broadening of the Diaz holding, including lack of knowledge or due diligence on the part of the prosecutor. Finally, looking at Diaz as an exception to autrefois convict makes more sense from a policy perspective because the original holding was not trying to create an exception to a double jeopardy autrefois acquit scenario. (232) The Court's original focus was trying to ensure that the criminal does not escape liability for a murder originally caused by his actions (i.e., an autrefois convict scenario). (233) Thus, from a policy perspective and based on the current case law, the better way to view Diaz's holding is as an exception to the rule announced in Brown v. Ohio.

The same outcome occurs in an implied acquittal scenario. This arises where the accused is tried for aggravated assault at the original trial but is only convicted of simple assault, after the jury is instructed on the charged offense and all potential lesser-included offenses. Under the law, the accused is impliedly acquitted of the greater charge because the factfinder determined, based on their verdict, that the Government did not meet all the elements of the greater offense. Therefore, in an implied acquittal scenario, where the accused is convicted only of a lesser charge, the acquittal of a greater offense at the first trial should bar subsequent prosecutions for other greater offenses in subsequent prosecutions, such as murder. This results from the fact that the accused as a matter of law is acquitted of one of the potential crimes in the range of crimes for which he is potentially liable. Since the Government could not prove an element at the original trial, the subsequent death of the victim does not allow the Government to try and reprove an element necessary for a murder conviction which they failed to prove originally. (234)

The result of this analysis is that in an autrefois acquit scenario there is no difference between the application of the two double jeopardy bars if Diaz is properly viewed as an exception or collateral estoppels is applied to ensure just results. In the end a Fifth Amendment and Article 44 analysis reach the same conclusion: double jeopardy bars a subsequent prosecution.

D. The Brainteaser: Victim Dies After Trial but Prior to Final Action

The final scenario is the most difficult one. The final scenario occurs where an accused is tried and convicted of assault and the victim dies as a result of the injuries suffered from the assault after the verdict, but prior to final action. For purposes of analyzing these facts under the Fifth Amendment, two relevant time periods arise: (1) when jeopardy attaches and (2) when jeopardy "vests." Here the death occurred after attachment and after jeopardy "vests" because the death occurred after findings of guilt. Thus, for Fifth Amendment purposes, a subsequent murder prosecution for the death of the victim is a "new" offense. Alternatively, the Diaz exception applies and no constitutional double jeopardy bar exists. Regardless of how the Diaz holding is read, the Fifth Amendment will not bar the accused's subsequent prosecution.

The Article 44 analysis is more difficult in this scenario. Here, because no final action has occurred, the trial is not final for purposes of Article 44(b). (235) Therefore, for purposes of an Article 44 analysis, this scenario is analogous to a Fifth Amendment analysis where the victim's death occurs in the middle of the trial prior to a guilty verdict. This poses a problem in the application of the Diaz holding to Article 44. Here, it is difficult to argue that these crimes are not the "same offense" or that the facts leading to application of the Diaz exception apply. Unlike the Diaz case, the death here did not occur after the completion of a prior trial, leading to the original holding that the case was different in both "law and fact." (236) Furthermore, unlike the Fifth Amendment, the applicable time period for "attachment" and "vesting" of the jeopardy bar under Article 44 is the completion of trial. This time is based on Article 44's application of the common law concept that jeopardy does not arise until acquittal or conviction. Under Article 44(b), the relevant time period for analysis is final action, not the findings at trial. Therefore, here, at minimum, the facts of the assault and murder are inextricably tied together and the crimes are the same in "fact" even if they are distinct in law. Since these crimes are not distinct, the Diaz exception will not apply to Article 44 and double jeopardy will bar the subsequent proceeding. This scenario is similar to the facts in United States v. Hayes where the court held Article 44 bars subsequent prosecution. (237)

This situation places the prosecution in a precarious position. Because a trial for purposes of Article 44 has not occurred, Diaz is factually distinguishable. One argument for proceeding on the greater charge may be that there is no former jeopardy protection under Article 44 at this point because Article 44(a) requires that a former trial must occur for the protection to vest. Since the trial is ongoing, the prosecution could analogize this to a case of manifest necessity, have the case returned for a rehearing, prefer the additional charge of murder, and refer both charges to trial, or, in the alternative, dismiss the assault charge and proceed anew under a newly preferred charge of murder and a new trial.

Unfortunately, both courses of action ignore the additional policy protections inherent in the UCMJ's statutory automatic appellate scheme created by Articles 44, 63, and 66. The cases dealing with this policy clearly stand for the proposition that Congress's intent behind their creation of our appellate system was to benefit the accused. (238) By doing so, the courts protect the constitutional right against double jeopardy by preventing an accused from being "harmed" by appealing. (239) But for Article 44, an accused has no statutory protection from actions of the prosecution to increase the severity of the accused's conviction or his punishment in a system of automatic appeal. Also, without this policy--as implemented in part by Article 44--an accused would be placed in the difficult position of deciding whether to withdraw his appellate rights or forgo his statutory defense of former jeopardy in order to secure a reversal of an erroneous conviction. As stated in Hayes, the policies behind Article 44 are implicated when the convening authority's action "patently [serves] to increase the severity of the punishment to be imposed on the accused." (240) Certainly, Congress did not intend to place a servicemember in such a dilemma when enacting automatic appellate rights, given the substantially different nature of the military appellate process and the substantial additional rights given an accused in the military justice system. (241)

Should the prosecution choose to take the second course of action--dismissing the charge and proceeding with a greater charge--the prosecution faces an additional challenge of dealing with the language contained in Article 44(c). Article 44(a) prevents the appellant from being "tried a second time for the same offense." (242) Article 44(b) and (c), however, define trial for purposes of Article 44(a). (243) By terminating the proceeding and dismissing the charge after the original trial for assault occurred, Article 44(c), by its language, makes the assault trial final after the victim's death, resulting in a "trial" for purposes of Article 44(a). (244) Therefore, unlike the facts in Diaz, the first trial is final after, the death of the victim. Because Article 44 and the Fifth Amendment differ in their definition of a "trial," the Diaz "exception" does not apply under Article 44 in this situation since the trial only becomes final under Article 44(c) at the time of the dismissal. Contrast this outcome with the Fifth Amendment where the original trial is final at the time of the verdict. Thus, by dismissing the original assault charge, the Government may create an Article 44 double jeopardy bar where the Diaz "exception" will not apply. Although seemingly unfair to the Government, this result is consistent with the additional policy rationale for Article 44, preventing harm from coming to an accused as a result of his appeal.

In addition to this Article 44 issue, the prosecution is faced with additional jurisdictional problems, intertwined with the former jeopardy analysis and the policy protecting individuals from additional harm resulting from exercising their appellate rights. This is primarily due to the limited jurisdiction of a court-martial. (245) Once the case is forwarded to the appellate courts, the convening authority and inferior tribunals are limited in the power they have over the case or controversy in question because jurisdiction vests in the appellate court by operation of law. (246)

Once a case reaches the appellate courts, Articles 66 and 67 vest jurisdiction over the subject matter of the offense(s) with the appropriate appellate court hearing the case. (247) By necessity, this divests any inferior court or convening authority with jurisdiction over the case. Until the appellate court releases jurisdiction, or a higher court takes jurisdiction, the appellate court maintains exclusive jurisdiction over the subject matter of the case. Any decision by the Court of Criminal Appeals, other than remanding the case for a new trial, shows a clear intent to divest the inferior tribunals of their unfettered jurisdiction over the case. Consequently, "[a]fter remand of a case, a lower court, or in the military any lower echelon, is without power to modify, amend, alter, set aside, or in any manner disturb or depart from the judgment of the reviewing court." (248) In cases where the appellate authority has acted,
   [a]fter decision by the appellate court and
   remand, it is the duty of the lower court to
   comply with the directions of the appellate
   court ***. After remand the lower court
   has no authority to enter any judgment or
   order not conforming to the mandate, or
   any judgment other than that directed or
   permitted by the reviewing court, or
   necessary to carry out the judgment into
   effect. (249)


The purpose of this jurisdictional restriction is to protect the judicial process, as well as the interests of the accused. In some circumstances, the court has declared void actions favorable to the accused because the convening authority's action was outside the court's mandate. (250) As a result, the Government is faced with the dilemma of choosing the second course of action--dismissing of the assault charge and re-preferring a murder charge. This will restore plenary power to the convening authority over the subject matter of the case. As explained above, this is an action the prosecution wants to avoid because it solidifies the Article 44 bar to re-prosecution for murder.

After considering issues related to the definition of a "trial" for Article 44 purposes, the Government may face an issue of res judicata as well. Because the victim died while the trial was ongoing (i.e., there is no final action so the trial is not complete), the Government is forced to stop an ongoing proceeding and charge the defendant with a greater offense. While based in the concepts of Fifth Amendment's attachment of jeopardy,
   the stopping of a trial to permit the
   defendant to be charged with a higher
   offense, or with the same offense before a
   higher tribunal so that a more severe
   sentence may be imposed, is, absent a
   statute to the contrary, the equivalent of an
   acquittal and bars any subsequent
   prosecution for a higher offense that
   embraces the offense first tried. (251)


This may not be directly applicable since in the factual situation at hand, the Fifth Amendment does not bar prosecution due to the Diaz holding, however, this rationale fits within the purpose of Article 44's statutory scheme and the rationale for Congress's addition of Article 44(c). In fact, the rationale is similar to that expressed in Hayes because the prosecution stopped the proceeding in order to increase the accused's criminal culpability. (252)

In the end, the analysis is not as simple as one might believe when looking only at the Fifth Amendment jurisprudence and the Diaz holding. Appropriately, Article 44 prevents application of the Diaz exception in certain circumstances because of the policy rationale behind its implementation and the structure of the military appellate system. The lack of literature and jurisprudence in this area coupled with the lack of differentiation in military appellate law between Fifth Amendment double jeopardy analysis and that of Article 44 leads to the conclusion that in certain factual situations, Article 44 provides an accused with former jeopardy protections that are unavailable in federal or state criminal courts. In the military this conclusion is reinforced by the policy that an accused should not be harmed from his appeal. The result is that Article 44 protects an accused when the additional facts leading to a greater offense occur prior to final action but after beginning trial on the merit.

VII. Recommendations

Because of the difficulty in applying the Diaz holding to an Article 44 analysis and the potential for confusion, Article 44 should be amended to clarify Congress's intent. This amendment is necessary to provide clear guidance to prosecutors and defense counsel on how to proceed under circumstances where a factual situation, similar to Diaz might occur. Based on current events, this situation may easily arise in the future.

For instance, consider the recent events at Fort Hood. On 5 November 2009, Major (MAJ) Nadal Hasan allegedly engaged in a shooting rampage resulting in the death or injuries to numerous civilian and military personnel at Fort Hood, Texas. (253) Based on this incident, MAJ Hasan is charged with thirteen specifications of premeditated murder and thirty-two specifications of attempted premeditated murder. (254) If MAJ Hasan were found guilty and received life without parole or the death penalty, his case would be automatically reviewed. It is likely this appeal will take a number of years before completion and final action. Suppose that during this process, one of the injured victims dies of wounds suffered during this attack. Can the Army subsequently charge and prosecute MAJ Hasan for the murder of these victims? Will Article 44 prevent additional murder charges while his case is appealed at a court-martial? If his case is reviewed, error is discovered, and a retrial is ordered, can the Government then add the additional murder charges? What, if any, advice should his defense counsel or appellate counsel provide regarding this issue? How should the Government proceed? Without an amendment to Article 44, the answers to these questions are uncertain, and no clear guidance exists for counsel faced with these dilemmas, despite the ease with which one can cite the Diaz holding.

Two options arise when looking at the appropriate manner for amending Article 44. (255) The first option is to repeal Article 44 altogether or to modify Article 44's language to state that the former jeopardy protections provided to servicemembers are equivalent to those provided under the Double Jeopardy Clause of the Fifth Amendment. It is now clear that Fifth Amendment Double Jeopardy protections apply to courts-martial. (256) Additionally, the Supreme Court has clarified that the "waiver" or "continuing jeopardy" theory in retrial cases is not the basis for these holdings. (257) Thus, the Fifth Amendment does not preclude retrial even in an automatic appellate system. Currently, retrials are authorized after meritorious appeals because appeals seek a benefit for the accused. As such, they do not implicate core purposes of the double jeopardy protection. Since part of the rationale underlying the necessity of Article 44--the fact that the statute was required due to the automatic appeal system in military law without the accused's consent--is no longer a valid concern in former jeopardy jurisprudence, Article 44 can be safely repealed.

While viable as an alternative, this does not altogether clarify the confusion associated with the issues discussed in this article. Many of Article 44's concepts justifying greater protection in certain circumstances are based upon the policy rationale that an accused should not come to any "harm" as a result of the automatic appeal system. Those policy arguments, while not as strong without the statutory language of Article 44, are still available by citing the policy rationale inherent in other articles of the UCMJ such as Article 63 (Rehearings) and Article 66. (258) Therefore, this option may continue to create confusion without ultimately clarifying how counsel should proceed in a scenario like the one presented in Part VI.

The second option is to amend Article 44 by adding an additional section, Article 44(d), to clarify this specific issue by providing a statutory Diaz exception or by clarifying that this exception does not apply to courts-martial. Suggested language is contained in Appendix A for both courses of action. While good arguments exist for both positions, the key issue is that Congress must resolve the current ambiguity to ensure counsel for both sides can adequately advise and represent their respective clients.

Until Congress takes action, counsel should consider the Article 44 implications when making charging decisions. Clearly, the most compelling argument for greater statutory protections, unless military courts demonstrate that they are receptive to the abrogation argument, is in the scenario where the additional fact raising the greater offense, such as the death of an assault victim, occurs when the case is proceeding through the appellate courts after trial but prior to final action. Here, jurisdiction issues arise with the prosecution's actions in these scenarios. If placed in this situation, military prosecutors should consider requesting return of the case from the appellate court. When moving for return of the case, the Government should request that the court vacate the previous judgment or set aside the findings and order a new trial. Once returned to the convening authority, the prosecutors should prefer an additional charge for the greater offense and refer both the original and additional charge to trial. Additionally, the prosecution should advise the convening authority to provide sentence credit for any portions of the sentence the accused served from the original conviction. This lessens the impact of arguments that the Government is attempting to exact multiple punishments for the same set of facts. Prior to dismissing the previous charge, the Government should proceed with caution to ensure that no Article 44(c) argument can be advanced by the defense. (259) By terminating the proceeding and dismissing the original charge, the convening authority may place itself in a situation where Article 44(c) results in a "trial" for purposes of Article 44(a). Since the death will occur prior to completion of the "trial," it is easier for the defense to distinguish the case from Diaz.

By taking these actions, the Government can argue that the two crimes are not the "same offense." Additionally, the Fifth Amendment will not preclude trial on the greater offense. Also, the accused is not harmed by appealing because he gets credit for the sentence already served, he gets an additional opportunity for an acquittal, and he is not punished more under Article 63 because this is an additional offense and Article 63 only applies to the assault charge. Also, it can advance the argument that Article 44 is no longer an issue because the trial has not been completed, and therefore, no jeopardy has "attached."

The defense on the other hand needs to be aware of the Diaz exception and the potential additional protections offered for its client. The defense can use the ambiguity to its advantage to exact a better deal in exchange for consent to trial under Article 44(a). When looking at how to structure a deal, consider a term where the Government agrees not to proceed on the greater charge even if the victim dies some time after the accused pleads guilty. This action will provide the ultimate protection for the client in the future.

Additionally, Diaz has important implications in cases where a client is convicted of an assault offense and it does not appear the victim will survive. Defense counsel needs to advise its client of the risks inherent in appealing and should put in writing the client's desires regarding waiver of post-trial or withdrawal of appellate rights. This protects counsel from being seen as ineffective should new counsel attempt to make the policy arguments advanced in this article if the client's case is remanded on appeal. In some cases, such as where a client is convicted of assault and the victim is still in critical condition, consider the withdrawal of appellate rights if the client receives a short sentence and a punitive discharge, in order to terminate military jurisdiction in case the victim subsequently dies.

VIII. Conclusion

In the end, the opening chant in Macbeth expresses the witches' desire to double human suffering by concocting their brew. Prosecutors must balance the societal benefit of ensuring an accused receives a conviction commensurate with the crime committed with the perception that they are exacting more human toil and trouble upon defendants in a factual situation similar to Diaz. Similarly, as Macbeth tried to analyze his future by solving the witches' riddles, counsel for both sides must wait for congressional clarity but restrain themselves from coming to the simple conclusion that the Fifth Amendment and Article 44 provide the same protections regardless of the situation. Moreover, Congress must get involved in solving these same puzzles that plague counsel faced with difficult factual situations by clarifying Article 44. This will ensure all judge advocates understand whether Diaz applies to Article 44 and what, if any, additional protections are given to an accused under military double jeopardy law. Doing so will solve the mystery of double jeopardy riddles and brainteasers for military justice practitioners.

Appendix

1. If Congress chose to provide additional protection servicemembers and prevent application of United States v. Diaz's holding in military law, Article 44(d) might read:
   No person may be tried in a court-martial for a greater offense
   after the introduction of evidence in a proceeding on a lesser
   charge. This subsection applies regardless of whether the United
   States was unable to proceed on the greater offense at the
   introduction of evidence because a particular fact occurred after
   introduction of evidence, or the United States was unable to
   discover the particular fact despite the exercise of due diligence
   prior to the introduction of evidence. Nothing in this subsection
   will be read to bar the United States from proceeding on the
   greater offense in another federal forum, such as a United States
   District Court, if authorized under the Constitution of the United
   States.


2. If Congress chose to provide a statutory Diaz exception in military law, then Article 44(d) might read:
   (d) Notwithstanding any other provision in this code, an offense is
   not the same offense under subsection (a), if after the
   introduction of evidence, a particular fact occurs or the United
   States was unable to discover the particular fact despite the
   exercise of due diligence, which allows the government to proceed
   on a more serious charge. However, the accused will receive
   sentence credit for any punishment received at the original trial
   for the lesser offense.


(1) William Shakespeare, Macbeth act 4, sc. 1.

(2) Id. act 1, sc. 1.

(3) Id. act 4, sc. 1.

(4) Roland Mushat Frye, Launching the Tragedy of Macbeth: Temptation, Deliberation, and Consent in Act I, Huntington Libr. Q., Summer 1987, at 249, 251.

(5) Note, Twice in Jeopardy, 75 Yale L.J. 262, 263 n.4 (1965) [hereinafter Twice in Jeopardy] (quoting Note, 24 Minn. L. Rev. 522 (1940)). In fact, Justice Rehnquist stated, "While the Clause itself simply states that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb,' the decisional law in the area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." Albernaz v. United States, 450 U.S. 333, 343 (1981).

(6) Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L.J. 1807, 1807 (1997).

(7) 223 U.S. 442 (1912).

(8) See discussion infra Parts V--VI (exploring whether this is an exception to double jeopardy's protection or a case where double jeopardy does not apply because it is by definition not the "same offense").

(9) United States v. Diaz, 223 U.S. 442, 448--49 (1912).

(10) UCMJ art. 44 (2008).

(11) United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008).

(12) In fact, one scholar declared, "the mere volume of activity has not cast much light upon the meaning of the concept of double jeopardy." Jay A. Sigler, Double Jeopardy: The Development of a Legal and Social Policy, at v (1969).

(13) But see id. at 62 n.106 (stating that it is unclear whether the Fifth Amendment applies to the military).

(14) E.g., United States v. Parcon, 6 Phil. 632 (1906).

(15) Sigler, supra note 12, at v.

(16) Id. at 4.

(17) United States v. Lynch, 162 F.3d 732, 737 (2d Cir. 1998) (Sack, J., concurring) (concluding that "In 1769, Blackstone used the term 'jeopardy' to describe the principle underlying Coke's pleas of autrefois acquit and autrefois convict; these pleas, he wrote, rested on 'the universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence.'").

(18) Sigler, supra note 12, at 23.

(19) Twice in Jeopardy, supra note 5, at 262 n.1. One Justice has stated that "'Coke's Institutes were read in the American Colonies by virtually every student of the law' and no citation is needed to establish the impact of Hale and Blackstone on colonial legal thought." Gannett Co. v. DesPasquale, 443 U.S. 368, 424 (1979) (Blackmun, J., concurring in part, dissenting in part).

(20) SIGLER, supra note 12, at 36.

(21) Id. at 4 (stating that "[D]ouble jeopardy is not mentioned in English statute law before its adoption into the American Constitution. Probably double jeopardy was not so fundamental a privilege, or perhaps it was obvious and well-established before the great writs of English history.").

(22) Id. at 36.

(23) Id. at 2 (quoting from the Digest of Justinian). The protection from multiple prosecutions after an acquittal of an offense is still the most powerful of all the double jeopardy protections, reinforcing the understanding of the protection of a trial by jury which embraces jury nullification.

(24) Id. at 3.

(25) Id. at 13-14. The end result was that "whatever protection against repeated prosecution may have been available before the fifteenth century seems to have been a bar against the repeated abuse of private prosecution, rather than a protection against the state." Id. at 15.

(26) Id. at 14.

(27) Id. at 4.

(28) See Amar, supra note 6, at 1810-12.

(29) SIGLER, supra note 12, at 9-10.

(30) Id. at 19.

(31) 4 William Blackstone, Commentaries *335; Sigler, supra note 12, at 17. For a detailed discussion of the common law pleas, see infra notes 44-55 and accompanying text.

(32) In fact, as the common law developed it appeared the cases became even more restrictive of the state's power to continually try an accused after a verdict. "By the time of Blackstone, it appears that although the king was theoretically permitted to bring a writ of error when the error appeared on the face of the record, the prosecution could not be granted a new trial unless the defendant had obtained his acquittal by fraud or treachery." United States v. Jenkins, 490 F.2d 868, 872 (2d Cir. 1973) (citations omitted).

(33) Sigler, supra note 12, at 20; 2 Matthew Hale, The History of the Pleas of the Crown *248 (stating that "But autrefois convict or autrefois acquit by verdict ... is no plea, unless judgment be given upon the conviction or acquittal in any case.").

(34) Sigler, supra note 12, at 21.

(35) Id. "No man shall twice be sentenced by civil justice for one and the same crime, offense, or trespass." Id. at 22 (quoting from the Body of Liberties).

(36) Id. at 23.

(37) Id.

(38) Id.

(39) See id. at 35.

(40) United States v. Lynch, 162 F.3d 732, 738 (2d Cir. 1998) (Sack, J., concurring).

(41) Id. The change occurred because Representative Benson recognized that
   the amendment 'was intended to convey what was
   formerly the law, that no man's life should be more
   than once put in jeopardy for the same offense.' Yet
   it was well known, he insisted, that a defendant was
   entitled to more than one trial, upon reversal of his
   original conviction.


United States v. Jenkins, 490 F.2d 868, 873 (2d Cir. 1973) (citation omitted).

(42) Lynch, 162 F.3d at 738. The change in language suggests, "that the Senate intended to ensure that the Double Jeopardy Clause incorporated the protections that the common law had come to provide--neither more nor less." Jenkins, 490 F.2d at 873.

(43) United States v. Scott, 437 U.S. 82, 88 (1978).

(44) Sigler, supra note 12, at 1.

(45) Blackstone, supra note 31, at *335; Hale, supra note 33, at *240-55; see also Jenkins, 490 F.2d at 871 (stating that "By the time of Lord Coke, the nascent double jeopardy concept had begun to mature into a complex of common law pleas, the most prominent of which were autrefois acquit and autrefois convict.").

(46) The formality of the plea at common law required the defendant at his new trial to bring forth two "matters" to substantiate the plea. Those matters included matters of record and matters of fact. The matters of record required the accused to present the previous record and indictment establishing the justice who heard the case and the verdict of acquittal. The matter of fact required the accused to prove that he was the same person who received the acquittal from the record and that the facts of the previous case were the same as those of his current indictment. Hale, supra note 33, at *241.

(47) Blackstone, supra note 31, at *336.

(48) See generally Hale, supra note 33, at *251--54 (discussing the historical application of the common law pleas of autrefois convict and autrefois attaint). This plea exists because, "generally, such proceeding on a second prosecution cannot be to any purpose; for the prisoner is dead in law by the first attainder, his blood is already corrupted, and he hath forfeited all that he had, so that it is absurd and superfluous to endeavor to attaint him a second time." Blackstone, supra note 31, at *337. The constitutional bar against bills of attainder prevents application of this plea in the United States. U.S. Const. art. 1, [section] 9. Chief Justice Rehnquist described the clause as follows:
   These clauses of the Constitution are not of the
   broad, general nature of the Due Process Clause, but
   refer to rather precise legal terms which had a
   meaning under English law at the time the
   Constitution was adopted. A bill of attainder was a
   legislative act that singled out one or more persons
   and imposed punishment on them, without benefit of
   trial. Such actions were regarded as odious by the
   framers of the Constitution because it was the
   traditional role of a court, judging an individual case,
   to impose punishment.


William H. Rehnquist, The Supreme Court 82 (2002).

(49) Sigler, supra note 12, at 18--19. This plea was based on the concept that "a pardon may be pleaded in bar, as at once destroying the end and purpose of the indictment, by remitting that punishment which the prosecution is calculated to inflict." Blackstone, supra note 31, at *337.

(50) The most prominent case establishing the rule regarding the plea in bar at common law was Vaux's Case, 4 Coke 44 (Q.B. 1591). United States v. Jenkins, 490 F.2d 868, 871 (2d Cir. 1973).

(51) Sigler, supra note 12, at 18-19.

(52) Id.

(53) Amar, supra note 6, at 1814.

(54) Id.

(55) Helvering v. Mitchell, 303 U.S. 391 (1937).

(56) Sigler, supra note 12, at 35.

(57) Id.

(58) This assumes that the sovereign or the military is the employer.

(59) Id.

(60) North Carolina v. Pearce, 395 U.S. 711, 717 (1969). "The common law not only prohibited a second punishment for the same offense, but it went further and forbid a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted." Ex parte Lange, 85 U.S. 163, 169 (1873); see also Twice in Jeopardy, supra note 5, at 266.

(61) Sigler, supra note 12, at vii.

(62) Crist v. Bretz, 437 U.S. 28, 33 (1978); Twice in Jeopardy, supra note 5, at 277.

(63) Brown v. Ohio, 432 U.S. 161, 165 (1977).

(64) 355 U.S. 184, 187 (1957).

(65) One scholar breaks down double jeopardy policy as follows:
   First, guilt should be established by proving the
   elements of a crime to the satisfaction of a single
   jury, not by capitalizing on the increased probability
   of conviction resulting from repeated prosecutions
   before many juries. Thus reprosecution for the same
   offense after an acquittal is prohibited. Second, the
   prosecutor should not be able to search for an
   agreeable sentence by bringing successive
   prosecutions for the same offense before different
   judges. Thus, reprosecution after conviction is
   prohibited. Third, criminal trials should not become
   an instrument for unnecessarily badgering
   individuals. Thus, the Constitution forbids a second
   trial--a second jeopardy--and not merely a
   conviction at the second trial. Finally, judges should
   not impose multiple punishments for a single
   legislatively defined offense. Thus multiple
   punishment for the same offense at a single trial is
   prohibited.


Twice in Jeopardy, supra note 5, at 266--67.

(66) The reason for this protection was summarized by Justice Black:
   one of the best common law judges that ever sat on
   the bench of the Court of Appeals of Kentucky
   remarked, 'that every person acquainted with the
   history of governments must know that state trials
   have been employed as a formidable engine in the
   hands of a dominant administration.... To prevent
   this mischief the ancient common law ... provided
   that one acquittal or conviction should satisfy the
   law.


Ex parte Lange, 85 U.S. 163, 170-71 (1873).

(67) Twice in Jeopardy, supra note 5, at 278; United States v. Scott, 437 U.S. 82, 91 (1978).

(68) Twice in Jeopardy, supra note 5, at 278. In the military this includes the acceptance of a panel's determination of appropriate punishment; whereas in the civilian context that determination is made by a judge. Thus, the term factfinder is used here as a generic term to include the person or persons that render a verdict or sentence.

(69) Id.; Green, 355 U.S. at 187.

(70) Amar, supra note 6, at 1816; Twice in Jeopardy, supra note 5, at 277.

(71) Twice in Jeopardy, supra note 5, at 286.

(72) Id. at 267.

(73) Id. at 277.

(74) Ashe v. Swenson, 397 U.S. 436, 447 (1970).

(75) Wade v. Hunter, 336 U.S. 684, 689 (1949).

(76) United States v. Jorn, 400 U.S. 470, 486 (1971) (plurality opinion).

(77) Twice in Jeopardy, supra note 5, at 277--78.

(78) Amar, supra note 6, at 1812.

(79) Ex parte Lange, 85 U.S. 163 (1873); Amar, supra note 6, at 1810; see also Sigler, supra note 12, at 39.

(80) Amar, supra note 6, at 1810.

(81) See id. at 1811.

(82) One additional category may arise when "[o]ne act may constitute conduct directed at several persons or objects. The question arises whether each person or object injured represents a criminally punishable act." Sigler, supra note 12, at 41. This factual situation is extremely important in determining the breadth and scope of a specific conspiracy but beyond the scope of this article. Typically, these cases are resolved under the definition of "same offense." See infra notes 88--110 and accompanying text.

(83) Sigler, supra note 12, at 41.

(84) Id. at 40--41.

(85) Id. at 40.

(86) The full scope and applicability of this exception is beyond the scope of this article. See United States v. Lanza, 260 U.S. 377 (1922), Abbate v. United States, 359 U.S. 187 (1959), and Bartkus v. Illinois, 359 U.S. 121 (1959) (providing an interesting discussion of this exception). While the exception is mentioned because of the prolific litigation it generates, a full discussion is unnecessary for the development of the thesis of this article. However, when looking at the policy implications argued by this article, the mere fact that an accused cannot be court-martialed for his actions in a Diaz scenario due to Article 44's additional protections does not mean the accused will escape justice. Merely, the forum for seeking justice may need to shift from a military tribunal to a civil forum such as federal or state court.

(87) Lanza, 260 U.S. 377; Abbate, 359 U.S. 187; Bartkus, 359 U.S. 121; see also Sigler, supra note 12, at 55-63.

(88) Sigler, supra note 12, at 64. Additionally, the intertwining of due process concepts which embody the lesser-included offense doctrine further complicate the process of providing a universal test because the tests are similar but the policy basis for the lesser-included offense doctrine rests in due processes fair notice opposed to double jeopardy's finality and repose roots.

(89) Id.

(90) See Twice in Jeopardy, supra note 5, at 270--71.
   Some courts seem to consider this [law and fact] test
   equivalent to the distinct elements test. But the
   distinct elements test would not permit prosecution
   for necessarily included offenses, while the same in
   law and fact test would. However, courts using the
   latter test usually make exception for necessarily
   included offenses, and thus it is functionally
   equivalent to the distinct elements test.


Id. at 273 n.53.

(91) See id. at 270--71 (stating that "At common law the slightest variance between the allegation and proof was fatal to the prosecution. Since a plea of former acquittal barred reprosecution for the same offense, this variance rule might have set criminals free simply because of the prosecutor's ineptness--an ineptness engendered more by the pedantry of the pleading system that by the prosecutor's negligence.").

(92) See id. at 269.

(93) Ashe v. Swenson, 397 U.S. 436, 453 (1970) (Brennan, J., concurring).

(94) SIGLER, supra note 12, at 68.

(95) 29 Mass. 496 (1832).

(96) Based on a careful reading of the case it appears that trespass included the modern day concept of criminal assault consummated by a battery.

(97) Roby, 29 Mass. at 509--10.

(98) Id.

(99) Id.

(100) Id. at 509.

(101) Other courts followed suit applying this test. See generally State v. Littlefield, 70 Me. 452 (1880); Burton v. United States, 202 U.S. 344 (1906). For application of the test to a military court-martial, see Grafton v. United States, 206 U.S. 333 (1907).

(102) Gavieres v. United States, 220 U.S. 338, 342 (1911).

(103) 284 U.S. 299 (1932). At one point the Supreme Court modified this holding by applying a same transaction/act type test. See Grady v. Corbin, 495 U.S. 508 (1990). The Grady rule was subsequently overruled and the Blockburger test was restored as the standard for Fifth Amendment purposes. United States v. Dixon, 509 U.S. 688 (1993).

(104) Twice in Jeopardy, supra note 5, at 273 n.52 (comes from Garries adopted and applied in Blockburger); United States v. Teters, 37 M.J. 370 (C.M.A. 1993) (applying Blockburger to the military).

(105) Sigler, supra note 12, at 66.

(106) Amar, supra note 6, at 1813; Brown v. Ohio, 432 U.S. 161 (1977).

(107) Amar, supra note 6, at 1813; Brown, 432 U.S. at 169 (holding that "[w]hatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense").

(108) Green v. United States, 355 U.S. 184 (1957); Amar, supra note 6, at 1826.

(109) Amar, supra note 6, at 1827. See infra Part VI.C.

(110) Id.; Ashe v. Swenson, 397 U.S. 436 (1970).

(111) Amar, supra note 6, at 1838.

(112) Sigler, supra note 12, at 15.

(113) Id. at 16.

(114) Amar, supra note 6, at 1838 (citing United States v. Haskell, 26 F. Cas. 207, 212 (C.C. Pa. 1823)).

(115) Sigler, supra note 12, at 41.

(116) Id. at 42.

(117) Id.

(118) Id.

(119) Id.

(120) Id. at 74.

(121) Downum v. United States, 372 U.S. 734 (1963); Crist v. Bretz, 437 U.S. 28 (1978).

(122) Serfass v. United States, 420 U.S. 377 (1975).

(123) Sigler, supra note 12, at 42.

(124) Id. at 43. The following cases illustrate factual circumstances where the courts have determined "manifest necessity" exists: United States v. Perez, 22 U.S. (9 Wheat) 579 (1824); Dreyer v. Illinois, 187 U.S. 71 (1902); Lovato v. New Mexico, 242 U.S. 199 (1916); Thompson v. United States, 155 U.S. 271 (1894); Illinois v. Somerville, 410 U.S. 458 (1973); Arizona v. Washington, 434 U.S. 497 (1978); and Wade v. Hunter, 336 U.S. 684 (1949).

(125) United States v. Dinitz, 424 U.S. 600 (1976).

(126) Id. at 611; Oregon v. Kennedy, 456 U.S. 667 (1982).

(127) Twice in Jeopardy, supra note 5, at 287.

(128) Sigler, supra note 12, at 71.

(129) Id. at 72.

(130) See generally Kepner v. United States, 195 U.S. 100, 134--37 (1904) (Holmes, J., dissenting) (arguing that appeals are allowed based on the concept of continuing jeopardy).

(131) Green v. United States, 355 U.S. 184 (1957); Sigler, supra note 12, at 72.

(132) Sigler, supra note 12, at 72 (discussing the holding in Green v. United States, 355 U.S. 184 (1957)).

(133) See United States v. Tateo, 377 U.S. 463, 466 (1964) (finding that "[i]n reality, therefore, the practice of retrial serves defendants' rights as well as society's interest. The underlying purpose of permitting retrial is as much furthered by application of the rule to this case as it has been in cases previously decided.").

(134) United States v. Scott, 437 U.S. 82 (1978).

(135) Id. at 98--99 (1978) (citations omitted). The Court explained further
   We think the same reasoning applies in pari passu
   where the defendant, instead of obtaining a reversal
   of his conviction on appeal, obtains the termination
   of the proceedings against him in the trial court
   without any finding by a court or jury as to his guilt
   or innocence. He has not been "deprived" of his
   valued right to go to the first jury; only the public has
   been deprived of its valued right to "one complete
   opportunity to convict those who have violated its
   laws." No interest protected by the Double Jeopardy
   Clause is invaded when the Government is allowed to
   appeal and seek reversal of such a midtrial
   termination of the proceedings in a manner favorable
   to the defendant.


Id. at 100 (citation omitted).

(136) Collateral estoppel is incorporated in military law through Rule for Court-Martial (RCM) 905(g) which states "[a]ny matter put in issue and finally determined by a court-martial, reviewing authority, or appellate court which had jurisdiction to determine the matter may not be disputed by the United States in any other court-martial of the same accused." Manual for Courts-Martial, United States, R.C.M. 905(g) (2008) [hereinafter MCM].

(137) Sigler, supra note 12, at 52.

(138) See, e.g., United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008).

(139) 336 U.S. 684 (1949).

(140) Uniform Code of Military Justice: Hearing on H.R. 2498 Before a Subcomm. of the H. Comm. on the Armed Servs. , 81st Cong. 1048 (1949) [hereinafter House UCMJ Hearings] (statement of Felix Larkin, Assistant General Counsel, Office of the Secretary of Defense) (Mr. Larkin also served as the Executive Secretary to the Committee on the Uniform Code of Military Justice and Chairmen, Uniform Code of Military Justice Working Group); see generally H.F. Gierke, The Use of Article III Case Law in Military Jurisprudence, Army Law., Aug. 2005, at 25.

(141) House UCMJ Hearings, supra note 140, at 669 (statement of General (Gen.) Franklin Riter on behalf of The American Legion).

(142) UCMJ art. 44 (1956).

(143) House UCMJ Hearings, supra note 140, at 669 (statement of Gen. Franklin Riter).

(144) See generally Kepner v. United States, 195 U.S. 100, 134--37 (1904) (Holmes, J., dissenting) (arguing that appeals are allowed based on the concept of continuing jeopardy).
   Holmes's basic idea is that a state could indeed
   structure its judicial system such that erroneous trial
   judge rulings are simply not final. When a defendant
   is convicted at trial because of a pro-state trial court
   error, an appellate court can review this error, reverse
   the conviction, and remand for a new trial. This new
   trial is not, constitutionally, a second jeopardy, but a
   continuation of the first, because the trial court
   'conviction' was not a true conviction.


Amar, supra note 6, at 1842 (discussing this issue in more depth).

(145) Uniform Code of Military Justice: Hearings on S.857 and H.R. 4080 Before a Subcomm. of the S. Comm. on the Armed Servs., 81st Cong. 168 (1949) [hereinafter Senate UCMJ Hearings] (statement of Franklin Riter, Officers' Reserve Corps, Judge Advocate Gen. Corps, Commander, Dep't of Utah, The American Legion).

(146) For a specific instance, see Felix Larkin's testimony during the House hearings on the inability to have a retrial in the case of an acquittal requiring the reading of Articles 44 and 62 together. House UCMJ Hearings, supra note 140, at 1051 (statement of Felix Larkin).

(147) Id. at 1049.

(148) Senate UCMJ Hearings, supra note 145, at 322 (discussion of major differences in the testimony of witnesses before the Subcomm. with Prof. Morgan and Mr. Larkin).

(149) This issue is clearly illuminated in the legislative history of Article 44. Colonel Weiner stated,
   It must be kept in mind that review of courts-martial
   cases in the military system and in this code by the
   convening authority in the first instance, and by the
   board of review in most cases, is mandatory and
   automatic. In civil courts this is not true. If a person
   is convicted in civil courts and there is a verdict
   against him, the appellate tribunal can consider the
   case and set aside the verdict of guilty and order a
   new trial, but they do so upon waiver by the
   defendant in the form of his petition for review and
   his request for reversal.

   Since most military cases are automatically reviewed,
   the convening authority or the board of review may
   determine for one reason or another that the verdict
   of guilty is not sustainable. They may change that
   verdict; make it a nullity by setting it aside or
   remanding the case for a rehearing, or, in some
   instances, providing for a new trial. If jeopardy
   attached at the beginning of the case and a
   subsequent finding of guilty was set aside for any
   reason, a rehearing could not be conducted without
   the consent of the accused because jeopardy would
   probably have attached. To change the military
   concept of jeopardy would necessitate a major
   change in the automatic appellate system that is
   provided by the military, which automatic system can
   only work in the interest of the accused.


H.R. Rep. No. 81-491, at 23 (1949); see also House UCMJ Hearings, supra note 140, at 803 (statement of Colonel Frederick B. Weiner). Felix Larkin reiterated these sentiments in his testimony, stating,
   If jeopardy first attached in the beginning of the case,
   then if the verdict was set aside and not sustained you
   could not have a rehearing unless you got the consent
   of the accused because jeopardy would probably
   prevent rehearing. This it seems to me would involve
   a major change in the automatic appellate system that
   is provided in military law.


House UCMJ Hearings, supra note 140, 1048-49, 52 (statement of Felix Larkin).

(150) See supra notes 128--135 and accompanying text for a discussion of the "waiver" theory. This concept has since fallen by the wayside but Article 44 remains unchanged from the language contained in its initial passage. See infra note 180 and accompanying text.

(151) Senate UCMJ Hearings, supra note 145, at 167 (statement of Franklin Riter).

(152) Colonel Weiner, a noted military law historian, testified that "I feel that article 44, as it now stands, is a correct statement of jeopardy; and, as a matter of fact, is closer to the original interpretation of the Fifth Amendment than a good many cases in civil courts." House UCMJ Hearings, supra note 140, at 802 (statement of Colonel Frederick Bernams Weiner, Washington, D.C.). Colonel Weiner drew this concept from a statement by Justice Washington in his 1823 interpretation of the Fifth Amendment. United States v. Haskell, 26 F. Cas. 207, 212 (C.C. Pa. 1823).

(153) House UCMJ Hearings, supra note 140, at 669--70 (statement of Gen. Franklin Riter).

(154) Id. at 1047 (statement of Felix Larkin).

(155) 336 U.S. 684 (1949). For congressional concerns related to this issue, see Senate UCMJ Hearings, supra note 145, at 186 (statement of Franklin Riter).

(156) Wade v. Hunter, 336 U.S. 684, 685 (1949).

(157) Id. at 686.

(158) Id.

(159) Id. at 686--87 (quoting the convening authority).

(160) Id. at 687. While the current practice is to file a motion to dismiss opposed to a plea in bar, the Court explicitly states that the defendant "filed a plea in bar" at his second court-martial. Id.

(161) Id.

(162) Id. at 690--92. The holding was handed down during the congressional hearings on the UCMJ prior to its passage in 1950.

(163) House UCMJ Hearings, supra note 140, at 671 (statement of Gen. Franklin Riter).

(164) 336 U.S. 684 (1949).

(165) Senate UCMJ Hearings, supra note 145, at 170 (statement of Franklin Riter).

(166) Green v. United States, 355 U.S. 184, 187 (1957); Twice in Jeopardy, supra note 5, at 278.

(167) Ashe v. Swenson, 397 U.S. 436, 447 (1970).

(168) Wade, 336 U.S. at 689.

(169) In one case this may not be completely accurate. Since Article 44 embodies the common law concept of double jeopardy requiring a verdict for jeopardy to "attach," it cannot protect a defendant's valued right to have his trial completed by the current tribunal.

(170) See infra note 240.

(171) In fact, the Court of Military Appeals summarized this additional double jeopardy policy, stating,
   '[I]t cannot be imagined that the law would deny to a
   prisoner the correction of a fatal error, unless he
   should waive other rights so important as to be saved
   by an express clause in the Constitution of the United
   States.'

   This Court has also expressed the view that,
   assuming jurisdiction below, an accused cannot come
   to harm by appealing here and securing a reversal of
   his conviction. We conclude that, as in Green with
   regard to the jury's verdict, an accused who obtains
   review here does not forgo the right to beneficial
   action taken on his behalf by the Court of Military
   Review when he secures reversal of that court's
   action. If the Government believes that the Court of
   Military Review erred, it has the right to seek
   certification of the case by the Judge Advocate
   General for possible corrective action in this Court.
   It may not claim that the accused's successful
   petition for review has the same effect and removes
   any basis for his claim of former jeopardy.


United States v. Crider, 46 C.M.R. 108, 110 (C.M.A. 1973) (citations omitted).

(172) Id. at 111.

(173) United States v. Zimmerman, 6 C.M.R. 12, 23-24 (C.M.A. 1952) (citations omitted); see also United States v. Dean, 23 C.M.R. 185 (C.M.A. 1957); United States v. Shulthise, 33 C.M.R. 243, 245 (C.M.A. 1963) (stating that "an accused can never be prejudiced by appellate review"); United States v. Crider, 46 C.M.R. 108, 110 (C.M.A. 1973) (stating that "an accused cannot come to harm by appealing here and securing a reversal of his conviction."); United States v. Culver, 46 C.M.R. 141 (C.M.A. 1973).

(174) Professor Morgan, the primary drafter of the UCMJ, made the following statement on the appeal issue:
   [I]f [an accused service-member] had been convicted,
   and it is set aside, and a new trial ordered, you see,
   and in the new trial he cannot be stuck for anything
   he was not found guilty of before. No sentence for
   the same offense can be increased on the new trial,
   and so forth.


Senate UCMJ Hearings, supra note 145, at 321 (discussion of major differences in the testimony of witnesses before the subcommittee with Professor Morgan and Mr. Larkin). The following colloquy in the Senate Hearings illustrates this point more clearly in the discussion of an accused's right to waive appellate review:
   Senator Saltonstall. Under what conditions would he
   waive a review, because he was satisfied with the
   sentence?

   Professor Morgan. He practically would never do it,
   as a matter of fact, because we have got him
   protected here. He cannot be stuck any worse than he
   was on the new trial. The sentence could not be
   increased. It is all to the good for him, so that he will
   never waive it, as a matter of fact.


Id. at 323.

(175) One commentator framed the policy in discussing the Fifth Amendment Double Jeopardy Clause, "the question of impact of the defendant's appeal should be resolved in such a way that the defendant would not be forced to gamble with his future." Sigler, supra note 12, at 75.

(176) Id. at 43.

(177) United States v. Wells, 26 C.M.R. 289 (C.M.A. 1958). But see United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008) (stating attachment occurs at different time based on whether the finder of fact is a judge or panel).

(178) United States v. Villines, 9 M.J. 807 (N.M.C.M.R. 1980). Under the predecessor to Article 44, providing that no person should, without consent, be tried a second time for the same offense, the first trial had to be a complete trial, and not justly or unavoidably interrupted one. Sanford v. Robbins, 115 F.2d 435 (5th Cir. 1940).

(179) Francis A. Gilligan & Fredric I. Lederer, Court Martial Procedure [section] 7-11.00 (2d ed. 1999). In fact, instances exist where the protections do not run concurrently. Cf. United States v. Richardson, 44 C.M.R. 108, 111--12 (C.M.A. 1971).

(180) Gilligan & Lederer, supra note 179, [section] 7-11.00.

(181) UCMJ art. 44(a) (2008).

(182) 26 C.M.R. 296 (C.M.A. 1958).

(183) United States v. Ivory, 26 C.M.R. 296, 300 (C.M.A. 1958) (citations omitted).

(184) Id.

(185) Id.
   It has been axiomatic to our jurisprudence that the
   jeopardy provisions of the Constitution are waived by
   an accused who is enjoying a new trial as a
   consequence of his own successful appeal from a
   former proceeding. This waiver would not, of course,
   be applicable in all appeals in military law since,
   under our procedure, an accused may be the
   beneficiary of certain automatic appeals. Rather than
   eliminate this salutary provision of military law the
   legislature chose instead to insure legally valid
   rehearings by providing [Article 44(b)].


Id. (citations omitted)

(186) Id.

(187) See id.

(188) Id. (citation omitted)

(189) Id. at 301.

(190) Id.

(191) Id.

(192) United States v. Diaz, 223 U.S. 442 (1912).

(193) Brown v. Ohio, 432 U.S. 161, 169 (1977) (holding that "[w]hatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.").

(194) Amar, supra note 6, at 1813--14.

(195) 223 U.S. 442 (1912).

(196) Id. at 444. This case arose out of the Philippines giving the Supreme Court federal jurisdiction to hear the defendant's appeal. Specifically, the Court construed the double jeopardy provision contained in the Philippine Civil Government Act in its holding. Because the language of the statute is the same as that found in the Fifth Amendment Double Jeopardy Clause this fact is insignificant in determining the import of the Court's holding.

(197) Id.

(198) Id.

(199) Id.

(200) Id.

(201) Id.

(202) Id. at 448--49 (citations omitted). Additionally, in dicta, the court found another basis for the lack of a double jeopardy bar. The court stated "although possessed of jurisdiction to try the accused for assault and battery, was without jurisdiction to try him for homicide; and of course, the jeopardy incident to the trial before the justice did not extend to an offense beyond his jurisdiction." Id. This "jurisdictional exception" is not relevant in the military justice system and therefore will not be addressed in this article.

(203) It is unclear whether Diaz applies to the military. The Supreme Court's constitutional interpretations are only accorded persuasive value in military courts, opposed to precedential value, because of the special nature of the military justice system. See Gierke, supra note 140. This is especially true in this context where the civilian justice system does not have an automatic appellate right and appellate courts with fact finding powers as found in Article 66. Additionally, civilian criminal courts authorize an accused to waive his appellate rights for purposes of receiving a more beneficial plea bargain and waiver of appellate rights is presumed when an accused does not file a timely appeal (opposed to our system where the accused must affirmatively withdraw his appellate rights and the withdrawal must be in writing). Despite these issues, it seems likely that this exception will apply since the court is likely to adopt all the Fifth Amendment double jeopardy caselaw once it determines the constitutional right applies to military members. As such, this article assumes it applicability. If Diaz does not apply in the military then a mechanical application of Brown holding prevents a subsequent prosecution of a greater offense, even if the victim was alive at the time of the original trial.

(204) 417 U.S. 21, 29 (1974).

(205) Id. at 29.

(206) 432 U.S. 161, 169 (1977).

(207) Id. at 169. In Illinois v. Vitale, 447 U.S. 410, 420 (1980), the Supreme Court strengthened the force of the holding in Brown, determining that if two offenses are the same under Blockburger then the trial on a later charge constitutes double jeopardy. Again they reiterated the Diaz exception stating,
   [w]e recognized in Brown v. Ohio, 432 U.S., at 169,
   n.7 that '[a]n exception may exist where the State is
   unable to proceed on the more serious charge at the
   outset because the additional facts necessary to
   sustain that charge have not occurred or have not
   been discovered despite the exercise of due diligence.


Id. This exception was not applicable because the trial court found that the prosecution was aware that Vitale's accident had resulted in two deaths at the time he was prosecuted for failing to reduce speed.

(208) Amar, supra note 6, at 1824.

(209) 471 U.S. 773 (1985). For an excellent summary of this case's effect, see Amar, supra note 6, at 1824-25.

(210) Garrett, 471 U.S. at 786.

(211) Id. at 779-80.

(212) Id. at 783 (O'Connor, J., concurring).

(213) Amar, supra note 6, at 1824.

(214) Id.

(215) In the original holding, the Diaz Court stated the subsequent homicide was not the same in "law or fact" to the original assault charge. United States v. Diaz, 223 U.S. 442, 448--49 (1912). At the time Diaz was decided, this meant that the crimes were not the "same offense" for double jeopardy purposes. See Part II.B (providing a historical discussion on the development of the "same offense" test in Fifth Amendment double jeopardy jurisprudence).

(216) Amar, supra note 6, at 1825.

(217) 14 C.M.R. 445 (N.M.B.R. 1953).

(218) Id. at 447.

(219) Id.

(220) Id. at 449.

(221) Id. at 448.

(222) Id.; see also United States v. Lynch, 47 C.M.R. 498 (C.M.A. 1973) (stating that "One cannot be prosecuted and punished for an act which is 'part and parcel' of an offense for which he was previously convicted and punished").

(223) See discussion supra Part IV.B.

(224) See UCMJ art. 2(7) (2008).

(225) Id. art. 44(a).

(226) One argument for additional collateral estoppel protection in the military is that RCM 905(g) expands the scope of the concept of collateral estoppel. By promulgating a specific rule, the President may have severed the connection between collateral estoppel and double jeopardy. If so, mechanical application of the rule is required regardless of whether double jeopardy policies are implicated.

(227) United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977) (citing United States v. Ball, 163 U.S. 662, 671 (1896)) (stating, "[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that '(a) verdict of acquittal ... could not be reviewed, on error or otherwise, without putting (a defendant) twice in jeopardy, and thereby violating the Constitution.'"); United States v. Scott, 437 U.S. 82, 91 (1978) (stating, "the law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that 'even though innocent, he may be found guilty.'").

(228) See Twice in Jeopardy, supra note 5, at 283--84 (illustrating that many courts limit the application of collateral estoppels because they require the defendant to show with near certainty that the prior litigated facts was the only basis for the acquittal in order to invoke this rule).

(229) See id. at 270--71.
   Some courts seem to consider this [law and fact] test
   equivalent to the distinct elements test. But the
   distinct elements test would not permit prosecution
   for necessarily included offenses, while the same in
   law and fact test would. However, courts using the
   latter test usually make exception for necessarily
   included offenses, and thus it is functionally
   equivalent to the distinct elements test.


Id. at 273 n.53.

(230) See discussion supra Part III.B. See also Twice in Jeopardy, supra note 5, at 270--71 (stating that "At common law the slightest variance between the allegation and proof was fatal to the prosecution. Since a plea of former

acquittal barred reprosecution for the same offense, this variance rule might have set criminals free simply because of the prosecutor's ineptness.").

(231) Id.

(232) United States v. Diaz, 223 U.S. 442, 448--49 (1912).

(233) Id.

(234) This conclusion presumes that proving the element is necessary. However, it if is unnecessary for proof it is unlikely that the offenses are related as greater and lesser offenses. If not, then Brown's general rule is not applicable and general double jeopardy principles, applied mechanically, would allow a subsequent prosecution because the crimes are not the "same offense." The only potential bar in this scenario would arise from collateral estoppel.

(235) UCMJ art. 44(b) (2008).

(236) Diaz, 223 U.S. at 448--49.

(237) 14 C.M.R. 445, 448 (N.M.B.R. 1953).

(238) See discussion supra Part IV.B.

(239) Id.

(240) Hayes, 14 C.M.R. at 448.

(241) Congressional intent is supported by the fact that withdrawal must be in writing. UCMJ art. 61 (2008); MCM, supra note 136, R.C.M. 1110. This is also supported by the fact that it violates public policy for the Government to force an accused to waive these rights as part of a plea agreement. E.g., id. R.C.M. 705(c)(1).

(242) UCMJ art. 44(a) (2008).

(243) Article 44(b) defines trial for purposes of Article 44(a) as "No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed." Id. art. 44(b). Article 44(c) defines trial for purposes of Article 44(a) as "A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this article." Id. art. 44(c).

(244) In fact, this is exactly what occurred in United States v. Hayes where the court stated
   that this "termination" and "dismissal" was without
   any fault of the accused; and that the language of
   Article 44, UCMJ, interpreted in light of the
   discussion in MCM, 1951, 68d, and the provisions
   relating to reconsideration and revision in Article 62,
   UCMJ, [sic] does not include authorization for the
   action taken by the convening authority in this case.


Hayes, 14 C.M.R. at 448.

(245) United States v. Goodson, 3 C.M.R. 32 (C.M.A. 1952).

(246) United States v. Montesinos, 28 M.J. 38, 42 (C.M.A. 1989) (stating that "[the] convening authority loses jurisdiction of the case once he has published his action or has officially notified the accused thereof; and from that point on, jurisdiction is in the Court of Military Review.").

(247) UCMJ arts. 66 & 67.

(248) United States v. Stevens, 27 C.M.R. 491, 492 n.1 (C.M.A. 1959); see also Montesinos, 28 M.J. at 44.

(249) United States v. Collier, 26 C.M.R. 529, 535 (A.B.R. 1958) (emphasis in original).

(250) Montesinos, 28 M.J. at 44.

(251) 21 Am. Jur. 2d Criminal Law [section] 300 (2009).

(252) United States v. Hayes, 14 C.M.R. 445, 448 (N.M.B.R. 1953).

(253) Officials: Fort Hood Shootings Suspect Alive; 12 Dead, CNN, Nov. 7, 2009, http://www. cnn.com/2009/US/11/05/texas.fort.hood.shootings.

(254) Army Adds Charges Against Rampage Suspect, MSNBC, Dec. 2, 2009, http://www.msnbc.msn.com/id/34243082/ns/us_news-tragedy_at_fort_hood.

(255) Another possible alternative is to add additional language to the analysis of Article 44 in the Manual for Courts Martial. Unfortunately, while this may clarify the drafting committee's intent, it does not clarify the overall congressional intent for this statutory protection. Diaz was not specifically addressed in the legislative history nor has the Court of Appeals for the Armed Forces ruled on this issue. Thus, the issue remains litigable until resolved by Congress.

(256) E.g., Wade v. Hunter, 336 U.S. 684 (1949); United States v. McClain , 65 M.J. 894 (A. Ct. Crim. App. 2008).

(257) See supra notes 128--133 and accompanying text.

(258) UCMJ arts. 63 & 66 (2008).

(259) See discussion supra Part VI.D.

Major Daniel J. Everett, Judge Advocate, U.S. Army. Presently assigned as a Litigation Attorney, Litigation Division, U.S. Army Legal Services Agency, Arlington, Virginia. This article was submitted in partial completion of the Master of Laws requirements of the 58th Judge Advocate Officer Graduate Course.
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