Constitutional Law - Double Jeopardy - Government Appeal Not Barred Absent Factual Determination of Defendant's Guilt Or Innocence

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Ota, Russell A.
Issue Date
1979
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INTRODUCTION|In United States v. Scott, the United States Supreme Court held that the double jeopardy clause did not bar an appeal by the government from a mid-trial dismissal of an indictment where the dismissal, sought by the defendant, was based on grounds unrelated to factual innocence. This decision expressly overruled United States v. Jenkins which held that the government could not appeal from a final judgment in favor of a defendant where" further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand. Although the Scott Court recognized that the purpose of the double jeopardy clause was to protect against the threat of multiple prosecution, it is uncertain whether the Court's attempt to distinguish between final judgments based on factual innocence and other final judgments serves this fundamental purpose. The decision, moreover, may be criticized because of the difficulties associated with its practical application. To understand the weaknesses in the opinion, it is necessary first to examine the principles of the double jeopardy clause and their relationship to the underlying purpose of the clause...
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12 Creighton L. Rev. 1229 (1978-1979)
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Creighton University School of Law
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