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129 U. Pa. L. Rev. 701 (1980-1981)
Retrial After a Hung Jury: The Double Jeopardy Problem

handle is hein.journals/pnlr129 and id is 713 raw text is: 1981] RETRIAL AFTER A HUNG JURY: THE DOUBLE JEOPARDY PROBLEM JANET E. FINDLATER t For nearly a century, the United States Supreme Court has held that the double jeopardy clause of the fifth amendment' does not bar retrial following a hung jury.2 It has done so consistently, with- out discussion of the issue, by peremptory citation to the 1824 decision of United States v. Perez.3 In 1978, however, the Court acknowledged that Perez need not be read as a double jeopardy case,4 but summarily dismissed the possibility that Perez was de- cided on quite different grounds as of academic interest only. 5 The implication is clear-the Court will continue to adhere to the Perez rule despite the fact that Perez was not a constitutional case.0 It is the thesis of this Article that in so doing the Court is in error.7 Whatever the validity in 1824 of the Perez result, the f Associate Professor of Law, Wayne State University. A.B. 1970, Smith College; J.D. 1974, University of Michigan. The author wishes to express her gratitude to Kathryn J. Humphrey, Class of 1980, Wayne State University Law School, for her invaluable research assistance on this Article. I The fifth amendment to the United States Constitution provides in part: [Nior shall any person be subject for the same offense to be twice put in jeopardy of life or limb. U.S. CONST. amend. V. The Supreme Court has held that the double jeopardy clause of the fifth amendment applies to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). See also Crist v. Bretz, 437 U.S. 28, 32 (1978). Additionally, all but five states (Connec- ticut, Maryland, Massachusetts, North Carolina and Vermont) have double jeopardy provisions in their constitutions. See ALI, AmnaTs s -noN OF = CRmINAL LAw: DoUBLE JEoPAPU)Y § 6, comment at 61-65 (Off. Draft, 1935). This Article will focus on double jeopardy as expressed in the fifth amendment. 2 See Keerl v. Montana, 213 U.S. 135 (1909); Dreyer v. Illinois, 187 U.S. 71 (1902); Logan v. United States, 144 U.S. 263 (1892). 322 U.S. (9 Wheat.) 579 (1824). 4 In fact, a close reading of the short opinion in that case could support the view that the Court was not purporting to decide a constitutional question, but simply settling a problem arising in the administration of federal criminal justice. Crist v. Bretz, 437 U.S. 28, 34 n.10 (1978). 5But to cast such a new light on Perez at this late date would be of academic interest only. Id. D The Court, of course, implicitly decided a constitutional question in Perez: it concluded that the double jeopardy clause did not apply to the hung jury case because, as the Court then interpreted that clause, jeopardy did not attach until a verdict was rendered. See text accompanying notes 13-18 infra. But, given the Court's premise that jeopardy was not implicated before verdict, the ultimate question for decision in Perez-whether retrial was permissible following a hung jury-was not a double jeopardy question. 7 The point is of no small import. It is estimated that approximately five percent of the cases that go to trial end in a hung jury. H. KaLvE- & H. ZMs~r., THE A2muc.N JunR 57 & n.2 (1966). (701)