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129 U. Pa. L. Rev. 701 (1980-1981)
Retrial After a Hung Jury: The Double Jeopardy Problem

handle is hein.journals/pnlr129 and id is 713 raw text is: 1981]

For nearly a century, the United States Supreme Court has held
that the double jeopardy clause of the fifth amendment' does not
bar retrial following a hung jury.2 It has done so consistently, with-
out discussion of the issue, by peremptory citation to the 1824
decision of United States v. Perez.3 In 1978, however, the Court
acknowledged that Perez need not be read as a double jeopardy
case,4 but summarily dismissed the possibility that Perez was de-
cided on quite different grounds as of academic interest only. 5
The implication is clear-the Court will continue to adhere to
the Perez rule despite the fact that Perez was not a constitutional
case.0 It is the thesis of this Article that in so doing the Court is
in error.7  Whatever the validity in 1824 of the Perez result, the
f Associate Professor of Law, Wayne State University. A.B. 1970, Smith
College; J.D. 1974, University of Michigan.
The author wishes to express her gratitude to Kathryn J. Humphrey, Class
of 1980, Wayne State University Law School, for her invaluable research assistance
on this Article.
I The fifth amendment to the United States Constitution provides in part:
[Nior shall any person be subject for the same offense to be twice put in jeopardy
of life or limb. U.S. CONST. amend. V. The Supreme Court has held that the
double jeopardy clause of the fifth amendment applies to the states through the
fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). See also
Crist v. Bretz, 437 U.S. 28, 32 (1978). Additionally, all but five states (Connec-
ticut, Maryland, Massachusetts, North Carolina and Vermont) have double jeopardy
provisions in their constitutions. See ALI, AmnaTs s -noN OF = CRmINAL LAw:
DoUBLE JEoPAPU)Y § 6, comment at 61-65 (Off. Draft, 1935). This Article will
focus on double jeopardy as expressed in the fifth amendment.
2 See Keerl v. Montana, 213 U.S. 135 (1909); Dreyer v. Illinois, 187 U.S. 71
(1902); Logan v. United States, 144 U.S. 263 (1892).
322 U.S. (9 Wheat.) 579 (1824).
4 In fact, a close reading of the short opinion in that case could support the
view that the Court was not purporting to decide a constitutional question, but
simply settling a problem arising in the administration of federal criminal justice.
Crist v. Bretz, 437 U.S. 28, 34 n.10 (1978).
5But to cast such a new light on Perez at this late date would be of academic
interest only. Id.
D The Court, of course, implicitly decided a constitutional question in Perez:
it concluded that the double jeopardy clause did not apply to the hung jury case
because, as the Court then interpreted that clause, jeopardy did not attach until a
verdict was rendered. See text accompanying notes 13-18 infra. But, given the
Court's premise that jeopardy was not implicated before verdict, the ultimate
question for decision in Perez-whether retrial was permissible following a hung
jury-was not a double jeopardy question.
7 The point is of no small import. It is estimated that approximately five
percent of the cases that go to trial end in a hung jury. H. KaLvE- & H. ZMs~r.,
THE A2muc.N JunR 57 & n.2 (1966).

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