Defenses. Former Jeopardy – Double Jeopardy
Under the 5th Amendment of the U.S. Constitution, “no person may, without his consent, be tried a second time for the same offense.”
When Jeopardy Attaches
According to the Court in See United States v. Ragard, 56 M.J. 852, 855 (A. Ct. Crim. App. 2003, in the military, jeopardy does not attach until an accused is put to trial before the trier of the facts. See United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008). In a panel case, this occurs when the members are empaneled and sworn. United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008) (citing Serfass v. United States, 420 U.S. 377, 390-91, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975)).
In United States v. Wells, 26 C.M.R. 289 (C.M.A. 1958), where the charges were withdrawn after arraignment but before presentation of evidence, there was no former jeopardy, and denial of a motion to dismiss charges at a subsequent trial was proper.
Double jeopardy does not attach when charges are dismissed for violating the statute of limitations. Thus, the government is not barred from prosecuting the defendant on a charge sheet that had properly been received within the period of the statute, following dismissal of charges for the same offense (but on a different charge sheet) that was not received within the period of the statute. However, if evidence was introduced in the first proceeding, the first is considered a trial and jeopardy attaches. United States v. Jackson, 20 M.J. 83 (C.M.A. 1985).
When Former Jeopardy Bars a Second Trial
Double jeopardy bars retrial only when the military judge or the panel has made a determination of guilt or innocence. See United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008) and United States v. Germono, 16 M.J. 987, 988 (A.C.M.R. 1988). In United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008), the Court held that retrial for offenses was not barred when the military judge granted a defense motion to dismiss on speedy trial grounds after hearing evidence in the first trial, but before entering findings. See also United States v. McClain, 65 M.J. 894 (A. Ct. Crim. App. 2008).
Once tried for a lesser offense, accused cannot be tried for a major offense that differs from the lesser offense in degree only. For example, in United States v. Hayes, 14 C.M.R. 445 (N.B.R. 1953), the Court found that the trial for AWOL bars subsequent trial for desertion. Similarly, in United States v. Lynch, 47 C.M.R. 498, 500 (C.M.A. 1973), the doctrine of former jeopardy precluded another trial for unauthorized absence from a different unit and shorter time period. However, in United States v. Robinson, 21 C.M.R. 380 (A.B.R. 1956), after conviction for an AWOL and after disapproval of findings and sentence by the convening authority, the Court permitted a trial for AWOL for the same period but from a different unit than was previously charged. See also United States v. Hutzler, 5 C.M.R. 661, 664 n.3 (A.B.R. 1951).
Nonjudicial punishment previously imposed under Article 15 for a minor offense and punishment imposed under Article 15 for a minor disciplinary infraction may be interposed as a bar to trial for the same minor offense or infraction. R.C.M. 907(b)(2)(D)(iv). “Minor” normally does not include offenses for which the maximum punishment at a general court-martial could be dishonorable discharge or confinement for more than one year. MCM, pt. V, ¶ 1.e.
If an accused has previously received punishment under Article 15 for other than a minor offense, the service member may be tried subsequently by court-martial. However, the prior punishment under Article 15 must be considered in determining the amount of punishment to be adjudged at trial if the accused is found guilty at the court-martial. United States v. Jackson, 20 M.J. 83 (C.M.A. 1985); see UCMJ art. 15(f); R.C.M. 1001(c)(1)(B). For example, in United States v. Pierce, 27 M.J. 367 (C.M.A. 1989), the Court determine that the defendant accused must be given complete credit for any and all nonjudicial punishment suffered—day-for-day, dollar-for-dollar, and stripe-for-stripe.