Familiar to most Americans, the double jeopardy clause (the clause) of the Fifth Amendment to the United States Constitution represents an idea so basic that the average person probably would feel comfortable attempting to explain it. Courts confronted with the task of fixing the meaning of the clause and the scope of its protection, how- ever, have found the task to be far from simple. The United States Supreme Court has been no exception.
During the 1989 Term, the Supreme Court continued its ongoing efforts to define double jeopardy protection. In Dowling v. United States the Court held that the collateral estoppel component of the double jeopardy clause' does not bar the admission of all evidence relating to a prior alleged crime of which the defendant had been acquitted. Less than five months later, however, in Grady v. Corbin,' the Court held that the double jeopardy clause bars subsequent prosecutions in which the government, in order to establish an essential element of the crime charged in the latter prosecution, will prove conduct constituting an offense for which the defendant already has been prosecuted.' Grady represents the culmination of a gradual movement by the Court toward increasing defendants' protection against the burdens of successive prosecutions." Grady, however, seems to conflict with much of the Court's prior double jeopardy jurisprudence. Unresolved inconsistencies between Grady and the Court's prior rulings have left the state and lower federal courts with a confusing mixture of standards to apply in double jeopardy inquiries.
The Grady decision poses other difficulties as well. Although the application of the Grady rule in a pretrial setting, prior to the admission of evidence, seems fairly clear and manageable, its application after the admission of evidence at trial, and during the post-conviction appeals process, is a more complex matter and one the majority in Grady failed to address. Furthermore, although Grady apparently leaves intact Federal Rule of Evidence 404(b), the scope of the Rule is far less clear after Grady."
Eli J. Richardson,
Matching Tests for Double Jeopardy Violations with Constitutional Interests,
45 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol45/iss1/7