Double Jeopardy in Massachusetts

The Fifth Amendment to the United States Constitution prohibits the government from placing a person in jeopardy twice for the same offense. Massachusetts enforces the same guarantee through its common law and through General Laws chapter 263, sections 7 and 8. The rule bars a second prosecution after an acquittal, a second prosecution after a conviction, and more than one punishment for a single offense. The guarantee applies in every Massachusetts criminal court. The guarantee limits what the Commonwealth may charge, how many counts may stand, and whether the Commonwealth may try a case again after the case ends without a verdict.

The protection does not stop a retrial after a hung jury. The protection also does not stop a second trial after a defendant wins an appeal on ordinary trial error. A state prosecution does not stop a later federal prosecution for the same conduct, and a federal prosecution does not stop a later state prosecution.

The Constitutional and Statutory Sources of the Protection

The Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The Supreme Court held in Benton v. Maryland, 395 U.S. 784 (1969), that this guarantee applies to the states through the Fourteenth Amendment. A defendant in a Massachusetts state court receives the full federal protection.

Massachusetts does not have an express double jeopardy clause in its Declaration of Rights. The protection in state law comes from the common law and from statute. The Supreme Judicial Court described these sources in Luk v. Commonwealth, 421 Mass. 415 (1995), and in Thames v. Commonwealth, 365 Mass. 477 (1974). Two statutes allow a defendant to plead an earlier acquittal or conviction as a bar to a new prosecution. General Laws chapter 263, section 7 allows a defendant to plead a former acquittal in bar of a later prosecution for the same crime. General Laws chapter 263, section 8 provides the parallel plea for a former conviction.

The Three Protections

The Supreme Court identified three distinct protections in North Carolina v. Pearce, 395 U.S. 711 (1969). The Double Jeopardy Clause protects against a second prosecution for the same offense after an acquittal, against a second prosecution for the same offense after a conviction, and against multiple punishments for the same offense.

The first two protections concern whether the government may put the person on trial again. The third protection concerns whether the sentence imposes more than one punishment for what the law treats as a single offense. A defendant may succeed under one protection and fail under another.

When Jeopardy Attaches

Double jeopardy protection begins only after jeopardy attaches. Before that point, the government may dismiss the charge and file it again without any bar. Whether an earlier proceeding bars a later prosecution therefore depends on whether jeopardy attached in the earlier proceeding.

In a jury trial, jeopardy attaches when the jury is empaneled and sworn. The Supreme Court held in Crist v. Bretz, 437 U.S. 28 (1978), that this rule is part of the constitutional guarantee and binds the states. In a trial without a jury, jeopardy attaches when the court begins to hear evidence. In Serfass v. United States, 420 U.S. 377, 388 (1975), the Supreme Court tied that moment to the point at which the defendant is put to trial before the trier of fact. The common statement that jeopardy attaches when the first witness is sworn describes the nonjury rule and appears in Crist citing Serfass.

What Counts as the Same Offense

In most double jeopardy disputes, the judge decides whether two charges are the same offense. Massachusetts uses the same-elements test stated in Morey v. Commonwealth, 108 Mass. 433, 434 (1871). Two offenses are distinct if each requires proof of a fact that the other offense does not require. The Supreme Court adopted the same test in Blockburger v. United States, 284 U.S. 299 (1932).

The court compares the elements of each offense in the abstract, not the particular acts the defendant committed. The Supreme Judicial Court applied that method in Commonwealth v. Vick, 454 Mass. 418 (2009), and allowed separate convictions arising from one course of conduct because each offense contained an element the other lacked. Where one charge contains every element of another charge and adds no element of its own, the two charges are the same offense. Convictions on both charges cannot stand.

Multiple Punishments for the Same Conduct

The third protection limits punishment even within a single trial. When a defendant is convicted of two offenses that are the same under the Morey test, the court may not impose punishment on both offenses. The Supreme Judicial Court applied this principle in Kuklis v. Commonwealth, 361 Mass. 302 (1972), and set aside duplicative convictions that punished the defendant twice for one offense.

The court sets aside the conviction on the lesser or wholly included charge and leaves the greater conviction in place. Duplicative convictions arise often where a complaint charges a greater offense and a lesser included offense from the same act. Defense counsel should examine every multi-count conviction for duplicative counts that the same-elements test forbids.

Retrial After a Hung Jury or Mistrial

A mistrial does not end a case. In most situations a mistrial does not bar a retrial. When a jury cannot agree on a verdict, the judge may discharge the jury. The Commonwealth may then try the case again. The Supreme Court recognized the deadlocked jury as the classic case of manifest necessity in United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824).

Where a judge declares a mistrial over the defendant’s objection, the Commonwealth may retry the defendant only where there was manifest necessity for the mistrial. The Supreme Court described that standard, and the deference given to the trial judge, in Arizona v. Washington, 434 U.S. 497 (1978). The firm’s page on mistrials in Massachusetts criminal cases addresses the Massachusetts rules on mistrials and manifest necessity in more detail. Where the prosecutor provokes a mistrial to gain an advantage, that misconduct can bar a second trial.

Retrial After an Appeal or Reversal

Winning an appeal usually does not end the case. When an appellate court reverses a conviction for ordinary trial error, the Commonwealth may retry the defendant, because the reversal corrects the trial process rather than deciding guilt. The Supreme Court, however, held in Burks v. United States, 437 U.S. 1 (1978), that a reversal for legally insufficient evidence bars retrial.

An appellate court that reverses for a bad jury instruction or an evidentiary error sends the case back for a new trial. A ruling that the evidence at the first trial was insufficient to convict operates as an acquittal. The double jeopardy bar then prevents the Commonwealth from trying again to prove its case. Massachusetts applies the same rule after a mistrial. The Commonwealth may not retry a defendant after a deadlocked jury where the evidence at the first trial was legally insufficient to support a conviction. Choy v. Commonwealth, 456 Mass. 146, 149 to 150 (2010).

Issue Preclusion and Prior Acquittals

The Supreme Court held in Ashe v. Swenson, 397 U.S. 436 (1970), that collateral estoppel is part of the Fifth Amendment guarantee against double jeopardy. When a jury’s acquittal necessarily decided a fact in the defendant’s favor, the government may not relitigate that fact in a later prosecution.

The doctrine protects a defendant whom a jury acquitted at a first trial where the only real dispute was a single fact, such as the identity of the perpetrator. If the acquittal shows that the jury resolved that fact for the defendant, the Commonwealth cannot build a new prosecution on the same fact.

Successive State and Federal Prosecutions

A state prosecution does not always bar a later federal prosecution for conduct arising from the same events. Under the dual-sovereignty doctrine, an offense against the laws of one sovereign is not the same offense as an offense against the laws of another. The Supreme Court reaffirmed the doctrine in Gamble v. United States, 587 U.S. 678 (2019).

A defendant charged in Massachusetts state court may therefore also face federal charges from the same incident. A federal defendant may likewise face Massachusetts state charges. Each prosecution proceeds as a separate case. The double jeopardy bar does not apply between the two prosecutions.

Greater and Lesser Included Offenses

A greater offense and a lesser included offense are the same offense for double jeopardy purposes. The Supreme Court so held in Brown v. Ohio, 432 U.S. 161 (1977). The Clause bars cumulative punishment for the two offenses. The Clause also bars a later prosecution for one of the offenses after a trial on the other offense.

A prosecution for the greater offense ordinarily bars a later prosecution for the lesser, and a prosecution for the lesser bars a later prosecution for the greater. The rule prevents the Commonwealth from dividing a single offense into successive trials.

Raising a Double Jeopardy Claim in Massachusetts

A defendant raises a double jeopardy claim by a plea in bar or a motion to dismiss that asserts the former acquittal, the former conviction, or the bar on a second trial. The pleas of former acquittal and former conviction rest on General Laws chapter 263, sections 7 and 8. The motion places the earlier proceeding before the court and asks the court to end the second case before the second case goes forward.

The right protected is the right not to be tried a second time. A defendant loses that right if review waits until after the second trial. For that reason, a defendant with a substantial double jeopardy claim may seek review before retrial through a petition to a single justice of the Supreme Judicial Court under General Laws chapter 211, section 3. The Supreme Judicial Court recognized that procedure in Costarelli v. Commonwealth, 374 Mass. 677, 680 (1978), and confirmed in Neverson v. Commonwealth, 406 Mass. 174 (1989), that a defendant raising a double jeopardy claim of substantial merit is entitled to review before a second trial.

Common Questions About Double Jeopardy in Massachusetts

Related Serpa Law Office resources

• Mistrials in Massachusetts criminal cases
• The Massachusetts criminal trial process
• Motions to dismiss in Massachusetts criminal cases
• Appeals in Massachusetts criminal cases
• Your rights when facing criminal charges in Massachusetts