Downum v. United States
372 U.S. 734 (1963)
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Rule of Law:
Once a jury has been selected and sworn, jeopardy attaches, and the subsequent discharge of the jury over the defendant's objection and without a manifest necessity to do so bars a retrial under the Double Jeopardy Clause of the Fifth Amendment.
Facts:
- Downum was charged with multiple counts of mail theft and check forgery.
- A man named Rutledge was a key prosecution witness for two of the six counts against Downum.
- Subpoenas for all witnesses, including Rutledge, were given to the U.S. Marshal for service.
- The day before the trial, the prosecutor learned that Rutledge's wife would try to locate him but his current whereabouts were unknown.
- The prosecutor made no further effort to confirm Rutledge's presence before trial.
- On the morning of the trial, April 25, 1961, the prosecution announced it was ready, and a jury was selected and sworn.
- After the jury was sworn and dismissed for a lunch recess, the prosecutor discovered that Rutledge had not been found and was not present.
- Downum requested that the trial proceed on the four counts not involving Rutledge.
Procedural Posture:
- Downum was indicted in a U.S. District Court on federal charges.
- At his first trial, after the jury was sworn, the prosecution requested the jury be discharged due to the absence of a key witness.
- Downum objected and moved for the trial to continue on the counts not requiring the absent witness, but the trial judge denied the motion and discharged the jury.
- Two days later, a second jury was impaneled for a new trial.
- Downum entered a plea of former jeopardy, which the trial court overruled.
- The second jury convicted Downum.
- Downum (appellant) appealed to the U.S. Court of Appeals for the Fifth Circuit, which affirmed the conviction (appellee: United States).
- The U.S. Supreme Court granted Downum's petition for a writ of certiorari.
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Issue:
Does a second trial, following the dismissal of the first jury over the defendant's objection because a key prosecution witness was absent, violate the Double Jeopardy Clause of the Fifth Amendment?
Opinions:
Majority - Mr. Justice Douglas
Yes, the second trial violates the Double Jeopardy Clause. Jeopardy attaches when a jury is impaneled and sworn, and a defendant has a valued right to have their trial completed by that particular tribunal. The jury may only be discharged before a verdict without the defendant's consent if there is an 'imperious' or 'manifest necessity.' The absence of a key prosecution witness, particularly when the prosecutor proceeded to have the jury sworn without first ensuring the witness's presence, does not constitute such a necessity. By impaneling the jury without his witnesses present, the prosecutor 'took a chance,' and the resulting situation was one where the government entered a trial without sufficient evidence to convict, which does not justify a mistrial that would permit a second prosecution.
Dissenting - Mr. Justice Clark
No, the second trial does not violate the Double Jeopardy Clause. The proper standard, established in Wade v. Hunter, allows for a trial to be discontinued when particular circumstances manifest a necessity and failing to do so would defeat the ends of justice. The prosecutor's failure to confirm the witness's presence was an 'excusable oversight' resulting from a heavy caseload and short notice, not a deliberate attempt to gain an advantage. The two-day delay before the second trial did not prejudice the petitioner, and the 'ends of public justice' require that the government have a fair opportunity to present its case rather than allowing a defendant to go free due to a harmless error.
Analysis:
This decision significantly strengthens the protections of the Double Jeopardy Clause by narrowly defining what constitutes 'manifest necessity' for a mistrial. It establishes that prosecutorial unpreparedness or negligence is not a sufficient justification to deprive a defendant of their right to a verdict from the first jury impaneled. By adopting the stricter standard from Cornero v. United States, the Court places the risk of witness unavailability on the prosecution once the jury is sworn, thereby discouraging prosecutors from proceeding to trial without being fully prepared. This precedent prioritizes the defendant's interest in finality and freedom from repeated prosecution over the state's interest in correcting its own trial errors.
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