9.10Double Jeopardy Issues


The right to be free from twice being placed in jeopardy for the same offense is guaranteed to criminal defendants by the federal and Michigan Constitutions, as well as by statute. US Const, Am V; Const 1963, art 1, § 15; MCL 763.5; People v Nutt, 469 Mich 565, 574 (2004). US Const, Am V provides: “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb[.]” The Double Jeopardy Clause applies to the states through the Fourteenth Amendment. North Carolina v Pearce, 396 US 711, 717 (1969). Const 1963, art 1, § 15 provides: “No person shall be subject for the same offense to be twice put in jeopardy.” This provision is “essentially identical to its federal counterpart” and was intended to be “construed consistently with the corresponding federal provision.” Nutt, 469 Mich at 575, 594.

“Both federal and Michigan double jeopardy provisions afford three related protections: (1) against a second prosecution for the same offense after acquittal, (2) against a second prosecution for the same offense after conviction, and (3) against multiple punishments for the same offense. [Nutt, 469 Mich] at 574; Pearce, [396 US 711].” People v Ford, 262 Mich App 443, 447 (2004).

“The purposes of double jeopardy protections against successive prosecutions for the same offense are to preserve the finality of judgments in criminal prosecutions and to protect the defendant from prosecutorial overreaching.” Ford, 262 Mich App at 447. “[T]he purpose of the double jeopardy protection against multiple punishments for the same offense is to protect the defendant from having more punishment imposed than the Legislature intended.” Id. at 447-448.

“Double-jeopardy protections only apply to multiple criminal punishments”; “the constitutional provision against double jeopardy is not violated when a civil penalty serves a purpose distinct from any punitive purpose.” Dep’t of Environmental Quality v Sancrant, 337 Mich App 696, 704 (2021) (quotation marks and citation omitted). The following factors should be analyzed “in determining whether a remedy in a civil case should be considered a punishment for double-jeopardy purposes:

(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.” Sancrant, 337 Mich App at 705 (quotation marks and citation omitted).

Because “double-jeopardy clauses generally do not prohibit subjecting a defendant to both criminal and civil penalties for the same act,” “the first question to be answered in the double jeopardy analysis is whether the first punishment was criminal or civil[.]” People v Adams, ___ Mich App ___, ___ (2023). “[P]rison disciplinary proceedings are not part of a criminal prosecution and thus do not call into play all those rights due a defendant in a criminal prosecution.” Id. at ___ (quotation marks and citation omitted). Indeed, “prison administrative proceedings and the corresponding punishments have been consistently treated as purely administrative and have been found not to invoke double jeopardy and other constitutional protections.” Id. at ___.

In Adams, the Court of Appeals held that “MDOC policies reflect an intent to create an administrative/civil punishment for violation of prison policy,” therefore, “the intent in providing punishment for violation of prison policies is to provide a civil punishment, as the punishment is primarily for discipline and other recognized administrative benefits of the penal institution.” Adams, ___ Mich App at ___. However, “there are some very limited circumstances in which punishments imposed in a civil process may still raise double jeopardy concerns. Thus, although a civil punishment is presumed not to invoke double jeopardy protections, it may be shown to be equivalent to a criminal punishment by the clearest proof that the penalty is so punitive in purpose or effect that it is rendered criminal.” Id. at ___ (quotation marks and citation omitted). “[W]here the legislative body has indicated an intention to establish a civil penalty, [courts] have inquired further whether the statutory scheme was so punitive either in purpose or effect, as to transform what was clearly intended as a civil remedy into a criminal penalty.” Id. at ___ (quotation marks and citation omitted). After considering the factors restated in Dep’t of Environmental Quality v Sncrant, 337 Mich App 696, 705 (2021), the Adams Court concluded “that the administrative punishment authorized by the policy did not transform the civil remedy into a criminal punishment.”Adams, ___ Mich App at ___. Accordingly, the Court of Appeals held “that the double jeopardy protections afforded by the state and federal constitutions were not implicated when the state brought criminal charges against defendant based upon the same conduct resulting in his prior administrative confinement. There was not the ‘clearest proof’ that the administrative punishment defendant received under MDOC policies was criminal.” Id. at ___.

B.Multiple Prosecutions for the Same Offense

“[T]he Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy. Therefore, a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense. Similarly, the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is based upon an egregiously erroneous foundation.” People v Simmons (On Reconsideration), 338 Mich App 70, 79 (2021) (quotation marks and citations omitted), rev’d in part on other grounds ___ Mich ___ (2022).1 “An acquittal precludes retrial even if it is premised upon an erroneous decision to exclude evidence, a mistaken understanding of what evidence would suffice to sustain a conviction, or a misconstruction of the statute defining the requirements to convict. Consequently, an acquittal is final even if it is based on an erroneous evidentiary ruling that precluded the prosecution from introducing evidence that would have been sufficient to convict the defendant.” Id. at 79-80 (quotation marks, alterations, and citations omitted). Additionally, “an acquittal includes a ruling by the court that the evidence is insufficient to convict, a factual finding that necessarily establishes the criminal defendant’s lack of criminal culpability, and any other ruling which relates to the ultimate question of guilt or innocence. On the other hand, a defendant who has been released by a court for reasons required by the Constitution or laws, but which are unrelated to factual guilt or innocence, has not been determined to be innocent in any sense of that word, absolute or otherwise.” Id. at 80 (quotation marks and citations omitted). “Whether a judgment of a lower court is an acquittal for purposes of double jeopardy is not to be controlled by the form of the judge’s action. Rather, an appellate court must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Id. at 81 (quotation marks and citations omitted).

However, a circuit court “acting in an appellate capacity” has “authority under MCR 7.114(D) and MCR 2.119(F)” to reconsider and reverse “its own order of acquittal” because it is “not final” and “subject to appellate review or reconsideration.” People v Simmons, ___ Mich ___, ___ (2022). Accordingly, the Michigan Supreme Court reversed that part of People v Simmons (On Reconsideration), 338 Mich App 70 (2021), that held “double jeopardy would bar a retrial of the defendant in the [district court] because the [circuit court] entered an order of acquittal.” Simmons, ___ Mich at ___.

1.Blockburger/Same Elements Test

“If the Legislature specifically authorizes cumulative punishments under two statutes, the multiple-punishment strand of double jeopardy is not implicated.” People v Fredell, 340 Mich App 221, 231 (2022). Conversely, where the Legislature expresses a clear intention in the plain language of a statute to prohibit multiple punishments, a court cannot punish a defendant for both offenses in a single trial. Id. at 231. When legislative intent is not clear, courts must apply the “abstract legal elements” test (also called the same-elements test) to determine whether the Legislature intended to classify two offenses as the same offense for double jeopardy purposes. Id. at 232. “Application of the same-elements test, commonly known as the ‘Blockburger test,’ is the well-established method of defining the Fifth Amendment term ‘same offence.’” People v Nutt, 469 Mich 565, 576 (2004); Blockburger v United States, 284 US 299, 304 (1932). The Blockburger test “‘focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.’” Nutt, 469 Mich at 576, quoting Iannelli v United States, 420 US 770, 785 n 17 (1975). In other words, “it is not a violation of double jeopardy to convict a defendant of multiple offenses if each of the offenses for which defendant was convicted has an element that the other does not.” Fredell, 340 Mich App at 232 (cleaned up) (holding that convicting the defendant of involuntary manslaughter and operating while intoxicated (OWI) causing death did not violate double jeopardy because involuntary manslaughter required proof of an element that OWI causing death did not).

2.Ashe/Collateral Estoppel

Collateral estoppel means “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit.” Ashe v Swenson, 397 US 436, 443 (1970). The rule of collateral estoppel “is embodied in the Fifth Amendment guarantee against double jeopardy.” Id. at 444-445. “Where a previous judgment of acquittal was based upon a general verdict, . . . a court [must] ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’” Id. (holding that the Double Jeopardy Clause prohibited the defendant from being prosecuted for robbing a poker player after an acquittal in a previous trial for robbing a different player from the same game established that he was not one of the robbers) (citation omitted). However, Ashe presents a narrow set of circumstances: “a court’s ultimate focus remains on the practical identity of offenses, and the only available remedy is the traditional double jeopardy bar against the retrial of the same offense – not a bar against the relitigation of issues or evidence.” Currier Virginia, 585 US ___, ___ (2018). “If a second trial is permissible, the admission of evidence at that trial is governed by normal evidentiary rules – not by the terms of the Double Jeopardy Clause.” Id. at ___ (further declining to “import into criminal double jeopardy law the civil law’s more generous ‘same transaction’ or same criminal ‘episode’ test”). Id. at ___.

Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial.” Currier, 585 US at ___. “To say that the second trial is tantamount to a trial of the same offense as the first and thus forbidden by the Double Jeopardy Clause, we must be able to say that ‘it would have been irrational for the jury’ in the first trial to acquit without finding in the defendant’s favor on a fact essential to a conviction in the second.” Id. at ___, quoting Yeager v United States, 557 US 110, 119-120 (2009).

“If a single trial on multiple charges would suffice to avoid a double jeopardy complaint, ‘there is no violation of the Double Jeopardy Clause when [the defendant] elects to have the . . . offenses tried separately and persuades the trial court to honor his election.’” Currier, 585 US at ___, quoting Jeffers v United States, 432 US 137, 152 (1977) (alteration in original) (this is true regardless whether the first trial yielded an acquittal or a conviction; while Ashe only applies to trials following acquittal, the Double Jeopardy Clause protects against multiple prosecutions for the same offense after conviction or acquittal). “[A] defendant who agrees to have [multiple] charges against him considered in two trials [cannot] later successfully argue that the second trial offends the Fifth Amendment’s Double Jeopardy Clause[.]” Currier, 585 US at ___. Defendant’s assertion that he was forced to seek two trials to avoid having the jury consider evidence of his prior convictions (to establish a charge of felon in possession of a firearm) was meritless. Id. at ___. “[D]ifficult strategic choices like these are ‘not the same as no choice,’ and the Constitution ‘does not . . . forbid requiring’ a litigant to make them.” Id. at ___ (citations omitted; alteration in original). 

3.“Separate Sovereign” Rule

Under “the dual-sovereignty doctrine, a single act gives rise to distinct offenses—and thus may subject a person to successive prosecutions—if it violates the laws of separate sovereigns.” Puerto Rico v Sanchez Valle, 579 US 59, 62 (2016). “[A] State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute, . . . [o]r the reverse may happen[.]” Gamble v United States, 587 US ___, ___ (2019).

In determining “whether two prosecuting authorities are different sovereigns for double jeopardy purposes, . . . [the] narrow, historically focused question” is “whether the prosecutorial powers of the two jurisdictions have independent origins—or, said conversely, whether those powers derive from the same ‘ultimate source.’” Id. at ___ (citing United States v Wheeler, 435 US 313, 320 (1978), and holding that “the ultimate source of Puerto Rico’s prosecutorial power” is the United States Congress, which “authorized and approved its Constitution, from which [its] prosecutorial power now flows[;]” accordingly, Puerto Rico and the United States “are not separate sovereigns” and therefore cannot “successively prosecute a single defendant for the same criminal conduct”).

The Double Jeopardy Clause does not bar successive state and federal prosecutions of a defendant for offenses arising from the same criminal episode. People v Davis, 472 Mich 156, 162 (2005). Because federal and state prosecutorial authority are derived from two distinct and independent sources, a defendant whose conduct violates both federal and state law commits two offenses subject to punishment by both sovereigns. Id. at 163-164; see also Sanchez Valle, 579 US at 69 (noting that “the States are separate sovereigns from the Federal Government” for purposes of double jeopardy because “[t]he States’ ‘powers to undertake criminal prosecutions’” do not derive from the United States Congress; rather, “the States rely on ‘authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment’”).

The dual sovereignty rule for successive federal and state prosecutions also applies to cases involving prosecutions by different states for the same criminal conduct; double jeopardy does not prohibit successive state prosecutions where a defendant’s conduct violates the law in more than one state and more than one state seeks to prosecute the defendant for a crime resulting from that conduct. Davis, 472 Mich at 158, 166-169 (noting that a state is a sovereign separate from another state when it derives its prosecutorial authority from a source independent of the other state’s source of authority); see also Sanchez Valle, 579 US at 69 (noting that “the States are separate sovereigns . . . from one another” for double jeopardy purposes). In Davis, the Double Jeopardy Clause did not bar the State of Michigan from prosecuting a defendant who had already been convicted and sentenced in Kentucky for offenses under Kentucky law that arose from the same conduct on which Michigan based its charges against the defendant. Id. at 158-159, 168-169.

While the Double Jeopardy Clause “prohibits separate prosecutions for the same offense,” “it does not bar successive prosecutions by the same sovereign.” Denezpi v United States, 596 US ___, ___ (2022). In Denezpi, the defendant’s “single act led to separate prosecutions for violations of a tribal ordinance and a federal statute.” Id. at ___. On appeal, the defendant argued that “the dual-sovereignty doctrine requires that the offenses be both enacted and enforced by separate sovereigns.” Id. at ___. However, the Denezpi Court observed that “an offense defined by one sovereign is necessarily a different offense from that of another sovereign” because “the sovereign source of a law is an inherent and distinctive feature of the law itself[.]” Id. at ___. Accordingly, “the two offenses can be separately prosecuted without offending the Double Jeopardy Clause—even if they have identical elements and could not be separately prosecuted if enacted by a single sovereign.” Id. at ___. “This dual-sovereignty principle applies where two entities derive their power to punish from wholly independent sources.” Id. at ___ (quotation marks and citation omitted). While the “doctrine has come up most frequently in the context of the States,” it applies to “Indian tribes too.” Id. at ___ (noting “[t]his case presents a twist on the usual dual-sovereignty scenario . . . involv[ing] a single sovereign . . . that enforced its own law . . . after having separately enforced the law of another sovereign”). Consequently, the Denezpi Court held that the Double Jeopardy Clause did not prohibit the defendant’s “separate prosecutions for violations of a tribal ordinance and a federal statute” because “the Tribe and the Federal Government are distinct sovereigns” and “those ‘offence[s]’ are not ‘the same.’” Id. at ___ (alteration in original).


“The very application of the Double Jeopardy Clause necessarily requires more than one trial.” People v Wilson, 496 Mich 91, 101 (2014), abrogated on other grounds by Bravo-Fernandez v United States, 580 US 5, ___ (2016). See also People v McKewen, 326 Mich App 342, 351, 352 (2018) (a single trial resulting in defendant’s conviction for two inconsistent charges (assault with intent to do great bodily harm less than murder and felonious assault) did not violate his constitutional protection against double jeopardy;2 however, it was improper for the trial court to allow the inconsistent verdict to stand, and the Court affirmed the assault with intent to do great bodily harm less than murder conviction and vacated the felonious assault conviction).

a.Retrial Following Entry of a Directed Verdict of Acquittal

When a trial court grants a defendant’s motion for a directed verdict of acquittal, the prohibition against double jeopardy generally prevents further action against the defendant based on the same charges. People v Nix (Terressa), 453 Mich 619, 626-627 (1996). “However, the trial court’s characterization of its ruling is not dispositive, and what constitutes an ‘acquittal’ is not controlled by the form of the action.” People v Mehall, 454 Mich 1, 5 (1997). Rather, a reviewing court must “determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” United States v Martin Linen Supply Co, 430 US 564, 571 (1977); see also Mehall, 454 Mich at 5. “Retrial is not permitted if the trial court evaluated the evidence and determined that it was legally insufficient to sustain a conviction.” Id. at 6.

“[R]etrial is barred when a trial court grants an acquittal because the prosecution . . . failed to prove an ‘element’ of the offense that, in actuality, it did not have to prove.” Evans v Michigan, 568 US 313, 317 (2013). In Evans, 568 US at 315, “[w]hen the State of Michigan rested its case at [the defendant’s] arson trial, the [trial] court entered a directed verdict of acquittal, based upon its view that the State had not provided sufficient evidence of a particular element of the offense.” However, “the unproven ‘element’ was not actually a required element at all.” Id. The United States Supreme Court held that “a midtrial acquittal in these circumstances is an acquittal for double jeopardy purposes[.]” Id. at 316. Accordingly, the defendant’s “trial ended in an acquittal when the trial court ruled the State had failed to produce sufficient evidence of his guilt.” Id. at 330. “The Double Jeopardy Clause thus bars retrial for his offense and should have barred the State’s appeal.” Id., reversing People v Evans, 491 Mich 1 (2012).3

b.Retrial Prohibited Following Premature Declaration of Mistrial4

“If the trial is concluded prematurely, a retrial for that offense is prohibited unless the defendant consented to the interruption or a mistrial was declared because of a manifest necessity.” People v Beck, ___ Mich ___, ___ (2022) (quotation marks and citation omitted). “It is the prosecutor’s ‘heavy’ burden to show manifest necessity.” Id. at ___.5 “To declare a mistrial, the trial court must find the facts justifying the mistrial. When such procedures are not followed, there is no manifest necessity for declaring a mistrial.” Id. at ___. In Beck, “during deliberations, a juror informed the judge that another juror may have done outside research on the case. Id. at ___. “The trial court did poll the jury by written note, go on the record with counsel to discuss the matter, and briefly consider each side’s proposed alternatives to a mistrial. However, the court’s consideration of the matter was too abrupt, and its conclusions were not supported by sufficient evidence.” Id. at ___ (holding that “although the trial court may have believed it was acting with an abundance of caution, the standard for declaring a mistrial was not satisfied”). “The nature of the juror’s outside research was unclear to the trial court and yet, instead of further probing what the juror researched and whether it would affect the proceedings, the trial court summarily declared a mistrial.” Id. at ___. “Further, despite learning through polling the jurors that only one other juror had knowledge of the outside research, the trial court concluded that the entire jury was tainted.” Id. at ___. Finally, “the trial court’s consideration of less drastic alternatives failed to sufficiently determine the extent of any jury taint and whether it was limited to jurors who could be excused and replaced. Due to these failures, the trial court did not adequately find a justification for mistrial that outweighed the defendant’s interest in continuing the trial.” Id. at ___.

c.Retrial Due to Deadlocked Jury

Retrial after a mistrial due to a deadlocked jury does not violate the Double Jeopardy Clause. Renico v Lett, 559 US 766, 773 (2010).

Where, “[b]efore the jury concluded deliberations . . . , [the jury foreperson] reported that [the jury] was unanimous against guilt on charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide[,]” and where the jury then continued deliberations before a mistrial was declared because the jury remained hopelessly deadlocked, the Double Jeopardy Clause did not bar the defendant’s retrial on all of the charged offenses. Blueford v Arkansas, 566 US 599, 601, 603-605, 610 (2012). Although the jury was instructed to consider the offenses in order, from greater to lesser, and to proceed to each lesser offense only after agreeing that the defendant was not guilty of the greater offenses, “the foreperson’s announcement of the jury‘s unanimous votes on capital and first-degree murder [did not] represent[] . . . a resolution of some or all of the elements of those offenses in [the defendant’s] favor.” Id. at 606. “The foreperson’s report was not a final resolution of anything[,] . . . [and t]he jurors in fact went back to the jury room to deliberate further, even after the foreperson had delivered her report[;]” because it was possible for the “jury to revisit the offenses of capital and first-degree murder, notwithstanding its earlier votes[,] . . . the foreperson’s report prior to the end of deliberations lacked the finality necessary to amount to an acquittal on those offenses[.]” Id. at 606, 608.

d.Retrial Following Dismissal for Improper Venue or other Prejudicial Trial Errors

“When a conviction is reversed because of a trial error, this Court has long allowed retrial in nearly all circumstances.” Smith v United States, 599 US ___, ___ (2023). The Constitution does not require “a different outcome when the conviction is reversed because the prosecution occurred in the wrong venue and before a jury drawn from the wrong location.” Id. at ___. The “appropriate remedy for prejudicial trial error, in almost all circumstances, is simply the award of a retrial, not a judgment barring reprosecution.” Id. at ___ (recognizing violations of the Speedy Trial Clause as one exception to this general rule).

e.Collateral Estoppel and Retrial in Situations Involving Inconsistent Verdicts

“In criminal prosecutions, as in civil litigation, the issue-preclusion [component of the Double Jeopardy Clause] means that ‘when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’” Bravo-Fernandez v United States, 580 US 5, ___ (2016), quoting Ashe v Swenson, 397 US 436, 443 (1970). “Collateral estoppel applies only where the basis of the prior judgment can be ascertained clearly, definitely, and unequivocally[,]” and “[i]n order for collateral estoppel to operate as a bar to a subsequent prosecution, the jury in the earlier [] proceeding must necessarily have determined that [the] defendant was not guilty of the [crime] charged in the prosecutor’s complaint.” People v Gates (Gregory), 434 Mich 146, 158 (1990). “Particularly where it appears that a jury’s verdict is the result of compromise, compassion, lenity, or misunderstanding of the governing law, the Government’s inability to gain [appellate] review ‘strongly militates against giving an acquittal [issue] preclusive effect.’” Bravo-Fernandez, 580 US at ___ (citation omitted; second alteration in original). “The inability of a court to determine upon what basis an acquitting jury reached its verdict, is, by itself, enough to preclude the defense of collateral estoppel.” Gates (Gregory), 434 Mich at 158. “The verdict in the first proceeding need not explicitly have addressed the issue to be precluded, however. The fact that a verdict is a general verdict may make the determination of what issues have been decided problematic, but it does not automatically bar the application of collateral estoppel.” Id., citing Ashe, 397 US at 444.

“[A]n appellate court’s vacatur of a conviction [does not] alter[] issue-preclusion analysis under the Double Jeopardy Clause[;]” accordingly, if “a jury returns inconsistent verdicts, convicting on one count and acquitting on another count, where both counts turn on the very same issue of ultimate fact[,]” and an appellate court vacates the conviction for legal error unrelated to the verdicts’ inconsistency, retrial on the charge resulting in conviction is not barred by the Double Jeopardy Clause “when [the] verdict inconsistency renders unanswerable ‘what the jury necessarily decided.’” Bravo-Fernandez, 580 US at ___ (citation omitted). Accordingly, where the jury returned inconsistent verdicts by convicting the petitioners of bribery but acquitting them of two related charges that were dependent on the standalone bribery offense and turned on the same contested issue of fact, the issue-preclusion component of the Double Jeopardy Clause did not bar a subsequent prosecution for bribery after the appellate court vacated the bribery convictions for instructional error. Id. at ___. Under these circumstances, the petitioners could not “establish the factual predicate necessary to preclude the Government from retrying them on the standalone [bribery] charges—namely, that the jury in the first proceeding actually decided that they did not violate the federal bribery statute.” Id. at ___, ___ n 6, abrogating People v Wilson (Dwayne), 496 Mich 91, 105-107 (2014) (which held that the collateral-estoppel strand of Double Jeopardy Clause jurisprudence barred retrial for felony murder where the defendant was convicted of felony murder but inconsistently acquitted of the only underlying felony supporting the felony murder charge, and the felony murder conviction was reversed on appeal for legal error).

f.         Cross-Over Collateral Estoppel and Criminal Trial Following Civil Trial

Cross-over estoppel is “‘the application of collateral estoppel in the civil-to-criminal context.’” People v Zitka, 325 Mich App 38, 45 (2018), quoting People v Trakhtenberg, 493 Mich 38, 48 (2012). “[I]n the body of case law applying [the] principle [of collateral estoppel,] the vast majority of cases involve the applicability of collateral estoppel where there are two civil proceedings. Cases involving ‘cross-over estoppel,’ where an issue adjudicated in a civil proceeding is claimed to be precluded in a subsequent criminal proceeding, or vice versa, are relatively recent and rare.” People v Gates (Gregory), 434 Mich 146, 155 (1990). Although the Supreme Court “has recognized the application of collateral estoppel in the civil-to-criminal context,” it “has “cautioned against its use.” People v Ali, 328 Mich App 538, 542 (2019) (quotation marks and citation omitted).

In Gates (Gregory), 434 Mich at 150-151, 165, the Michigan Supreme Court held that because the defendant’s guilt or innocence was not necessarily determined by a jury verdict of “no jurisdiction” in a child protective proceeding, the doctrine of collateral estoppel did not preclude the subsequent criminal prosecution of the defendant for criminal sexual conduct. “Although varying individual constitutional interests are at stake in [criminal and child protective] proceedings, it nevertheless remains true that these proceedings are fundamentally different: one is civil, the other criminal; they both serve different purposes and implicate different state interests . . .; each involves different burdens of proof and different procedural requirements; and criminal proceedings tend to be more adversarial in nature.” Ali, 328 Mich App at 548. Applying the rationale set forth in Gates, the Ali Court concluded that “factual findings made by a court in a child protective proceeding do not have collateral estoppel effect in a subsequent criminal proceeding.” Id. at 540.

In Trakhtenberg, 493 Mich at 42, 48-51, the Michigan Supreme Court held that “[‘cross-over’] collateral estoppel [could not] be applied to preclude review of a criminal defendant’s claim of ineffective assistance of counsel when a prior civil judgment held that defense counsel’s performance did not amount to malpractice,” because “[the] defendant did not have a full and fair opportunity to litigate his [ineffective assistance of counsel] claim in the [prior] malpractice proceeding.” Noting that “[s]everal Court of Appeals opinions have held that a criminal defense attorney may rely on the doctrine of collateral estoppel in order to avoid malpractice liability when a full and fair determination was made in a previous criminal action that the same client had received effective assistance of counsel,”6 the Trakhtenberg Court stated that it nevertheless “must hesitate to apply collateral estoppel . . . when the government seeks to apply collateral estoppel to preclude a criminal defendant’s claim of ineffective assistance of counsel in light of a prior civil judgment that defense counsel did not commit malpractice.” Id. at 48.

The trial court abused its discretion in granting the defendants’ motion to quash on the basis of collateral estoppel because the legality of the defendants’ actions under state criminal law was not actually litigated in the prior civil litigation involving compliance with local ordinances. Zitka, 325 Mich App at 46, 47. Additionally, the criminal action did not involve the same parties or privity because the state lacked a protectable interest in a civil action brought under local ordinance. Id. at 46, 47.

C.Reversed Criminal Contempt Conviction

“[S]ummary criminal contempt proceedings are not subject to the constitutional protections against double jeopardy.” In re Contempt of Murphy, ___ Mich App ___, ___ (2023). Accordingly, “if a criminal conviction for contempt of court from a summary proceeding is reversed on appeal, double jeopardy will not bar the matter from being taken up in a nonsummary proceeding on remand.” Id. at ___. “As compared to regular criminal trials and nonsummary proceedings, summary proceedings serve different purposes and, more importantly, are subject to materially different procedures. A person who is held in criminal contempt in a summary proceeding has not been subject to the harassment of a criminal trial. If the person is successful on appeal and has the conviction reversed, then remand for a nonsummary proceeding before a different judge does not pose a risk of successive trials.” Id. at ___.

D.Multiple Punishments for the Same Offense

“The multiple punishments strand of double jeopardy ‘is designed to ensure that courts confine their sentences to the limits established by the Legislature’ and therefore acts as a ‘restraint on the prosecutor and the Courts.’” People v Miller, 498 Mich 13, 17-18 (2015) (citation omitted).

“The multiple punishments strand is not violated ‘[w]here “a legislature specifically authorizes cumulative punishment under two statutes[.]”’” Miller, 498 Mich at 18 (citations omitted). “Conversely, where the Legislature expresses a clear intention in the plain language of a statute to prohibit multiple punishments, it will be a violation of the multiple punishments strand for a trial court to cumulatively punish a defendant for both offenses in a single trial[; ‘t]hus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.’” Id. (citations omitted).

“[W]hen considering whether two offenses are the ‘same offense’ in the context of the multiple punishments strand of double jeopardy,      [a court] must first determine whether the statutory language evinces a legislative intent with regard to the permissibility of multiple punishments.” Miller, 498 Mich at 19. “If the legislative intent is clear, courts are required to abide by this intent.” Id. “If, however, the legislative intent is not clear, courts must then apply the abstract legal elements test articulated in [People v Ream, 481 Mich 223 (2008),] to discern legislative intent.” Miller, 498 Mich at 19. The Ream test

“focuses on the statutory elements of the offense to determine whether the Legislature intended for multiple punishments. Under the abstract legal elements test, it is not a violation of double jeopardy to convict a defendant of multiple offenses if ‘each of the offenses for which [the] defendant was convicted has an element that the other does not . . . .’ This means that, under the Ream test, two offenses will only be considered the ‘same offense’ where it is impossible to commit the greater offense without also committing the lesser offense.” Miller, 498 Mich at 19, citing Ream, 481 Mich at 225-226, 238, 241.

“When the dispositive question is whether the Legislature intended two convictions to result from a single statute, it presents a ‘unit of prosecution’ issue[,]” and “[t]he question is whether the Legislature intended a single criminal transaction to give rise to multiple convictions.” People v Perry, 317 Mich App 589, 602 (2016), citing People v Wakeford, 418 Mich 95, 111-112 (1983). If “no conclusive evidence of legislative intent can be discerned, the rule of lenity requires the conclusion that separate punishments were not intended.” Perry, 317 Mich App at 604 (citations and quotation marks omitted). However, if there is a “clear indication of legislative intent and [an] absence of ambiguity, the rule of lenity does not apply.” Id. at 605-606, citing Wakeford, 418 Mich at 113-114.

1.Caselaw Examples: No Double Jeopardy Violation

The following are examples of crimes requiring proof of an element that the other does not, i.e., no double jeopardy violations found:

Armed robbery, MCL 750.529, and felonious assault, MCL 750.82(1). People v Chambers, 277 Mich App 1, 8-9 (2007).

Assault with intent to commit great bodily harm, MCL 750.84, and felonious assault, MCL 750.82. People v Strawther, 480 Mich 900 (2007).

Second-degree murder, MCL 750.317, operating a vehicle under the influence of intoxicating liquor or a controlled substance (OUIL) causing death, MCL 257.625(4), and operating a vehicle with a suspended license causing death, MCL 257.904(4). People v Bergman, 312 Mich App 471, 491, 492 (2015).

First-degree felony murder, MCL 750.316(1)(b), and the predicate felony of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1). People v Ream, 481 Mich 223, 240-241 (2008).

Carjacking, MCL 750.529a, and assault with intent to rob while armed, MCL 750.89. People v McGee, 280 Mich App 680, 684-685 (2008).

Carjacking, MCL 750.529a, and unlawfully driving away a motor vehicle (UDAA), MCL 750.413. People v Cain (Cain II), 495 Mich 874, 874-875 (2013).

First-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a), and second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a). People v Duenaz, 306 Mich App 85, 115 (2014).

First-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(c), and third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(c). People v Garland, 286 Mich App 1, 5-6 (2009).

Prisoner in possession of a controlled substance, MCL 801.263(2), and delivery of marijuana, MCL 333.7401(2)(d)(iii). People v Williams, 294 Mich App 461, 468-470 (2011).

Refusing or resisting collection of biometric data, MCL 28.243a(1), and resisting, obstructing, or assaulting a police officer, MCL 750.81d(1). People v Kammeraad, 307 Mich App 98, 144-145 (2014).

Resisting, obstructing, or assaulting a police officer, MCL 750.81d(1), and assault of a prison employee, MCL 750.197c(1). Kammeraad, 307 Mich App at 145.

Unlawful imprisonment, MCL 750.349b, and assault with a dangerous weapon (felonious assault), MCL 750.82. People v Bosca, 310 Mich App 1, 41-42 (2015), rev’d in part ___ Mich ___ (2022).

Felony-firearm, MCL 750.227b, and felon-in-possession, MCL 750.224f. People v Thigpen, ___ Mich App ___, ___ (2023).

Possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, when receiving or concealing stolen firearms or ammunition, MCL 750.535b, is the predicate felony. People v Mitchell, 456 Mich 693, 694-695 (1998).

Possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and carrying a concealed weapon (CCW), MCL 750.227. People v Sturgis, 427 Mich 392, 396, 409-410 (1986).

First-degree home invasion, MCL 750.110a(2), and felonious assault, MCL 750.82. People v Conley, 270 Mich App 301, 311-312 (2006).

Possession and delivery of the same controlled substance, People v Dickinson, 321 Mich App 1, 4-5 (2017), or possession and manufacture of the same controlled substance, People v Baham, 321 Mich App 228, 245-250 (2017).

A single conviction for one count of first-degree murder supported by two theories (e.g., premeditated murder and felony murder). People v Bigelow, 229 Mich App 218 (1998). See also People v Williams, 475 Mich 101, 103-105 (2006).

2.Caselaw Examples: Double Jeopardy Violation

The following are examples of crimes requiring proof of the same elements, i.e., double jeopardy violations found:

Operating while intoxicated (OWI), MCL 257.625(1), and operating while intoxicated causing serious impairment of the body function of another person (OWI-injury), MCL 257.625(5). People v Miller, 498 Mich 13, 15, 25-26 (2015).

Assault with intent to rob while armed, MCL 750.89, and armed robbery, MCL 750.529. People v Gibbs, 299 Mich App 473, 488-491 (2013).

Two separate counts of first-degree home invasion, MCL 750.110a(2), where there was only one home invasion supported by two theories. People v Baker, 288 Mich App 378, 386 (2010).

Larceny of property valued at $20,000 or more, MCL 750.356(2)(a), and receiving or concealing stolen property valued at $20,000 or more, MCL 750.535(2)(a), “when the convictions arise from the same criminal act because a person who steals property necessarily possesses stolen property.” People v Carson, ___ Mich App ___, ___ (2024).

Operating/maintaining a methamphetamine laboratory, MCL 333.7401c(2)(a), and operating/maintaining a methamphetamine laboratory within 500 feet of a residence, MCL 333.7401c(2)(d). People v Meshell, 265 Mich App 616, 630-633 (2005).

Aggravated indecent exposure, MCL 750.335a(1) and MCL 750.335a(2)(b), and indecent exposure, MCL 750.335a(1) and MCL 750.335a(2)(a). People v Franklin, 298 Mich App 539, 547 (2012).

Assault by strangulation, MCL 750.84(1)(b), and assault with intent to commit great bodily harm less than murder, MCL 750.84(1)(a). People v Barber (On Remand), 332 Mich App 707, 718 (2020).

Second-degree murder, MCL 750.317, and statutory involuntary manslaughter, MCL 750.329. People v Wafer, 509 Mich 31, 50-51 (2022).

E.Standard of Review

A double jeopardy challenge presents a question of constitutional law that is reviewed de novo. People v Conley, 270 Mich App 301, 310 (2006).

1   For more information on the precedential value of an opinion with negative subsequent history, see our note.

2   See Section 9.10(B)(4)(c) and Section 12.15(B) for discussion of inconsistent verdicts.

3    On April 5, 2013, the Michigan Supreme Court, “in conformity with the mandate of the Supreme Court of the United States[]” in Evans, 568 US 313, entered an order vacating its judgment and opinion in Evans, 491 Mich 1, and affirming the judgment of the Wayne County Circuit Court. People v Evans, 453 Mich 959, 959-960 (2013).

4    See Chapter 12 for more information on mistrial.

5   “Determining whether manifest necessity exists to justify the declaration of a mistrial requires a balancing of competing concerns: the defendant’s interest in completing his trial in a single proceeding before a particular tribunal versus the strength of the justification for a mistrial.” Beck, ___ Mich at ___ (quotation marks and citation omitted). Courts “are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes[.]” Id. at ___ (quotation marks and citation omitted).

6    “See, e.g., Barrow v Pritchard, 235 Mich App 478, 484-485 (1999).” Trakhtenberg, 493 Mich at 48.