Exceptions to the Bar

Exceptions to the Bar

Sections 1.08, 1.09 and 1.10 each ask whether an earlier prosecution forecloses a later one. Section 1.11 then asks whether that earlier prosecution deserves to be counted at all. Its lead-in provides that a prosecution is not a bar within the meaning of Sections 1.08, 1.09 and 1.10 under any of the circumstances it lists.¹ Two features of that lead-in organize the rest of this part. The exceptions work downstream of the bar analysis: a court first runs the route that produces a bar, such as the acquittal-or-conviction route or the inconsistent-determination route, and only then asks whether one of these exceptions strips the earlier prosecution of its barring effect. And because the lead-in names Sections 1.08 and 1.09 alongside Section 1.10, the exceptions reach same-State bars too, so a reader who met them first in the other-sovereign setting should apply them to a prosecution within a single State as well.²

Section 1.11 lists three circumstances, and the subsections below take them in the statute's order.³

The three circumstances are independent of one another. The lead-in says a prosecution is not a bar under any of them, so proof of one is enough to defeat a bar that would otherwise stand, and the others need not be shown.⁴ What unites them is the reason a bar exists in the first place. A bar protects a defendant who has already been through a legitimate proceeding and should not be made to face another on the same matter. Each exception removes a situation where the first proceeding was not legitimate, or was not final in the relevant sense. A court without jurisdiction had no power to produce a binding result, so nothing valid was ever adjudicated. A defendant who arranged a prosecution behind the prosecutor's back to secure a lighter sentence has used the proceeding as a device, and a bar would reward that manipulation. A conviction later held invalid no longer stands as a judgment. In every case there is no valid prior adjudication for the bar to protect, and the justification for the bar disappears with it. The first exception, which concerns the power of the court that conducted the earlier prosecution, comes next.

Court Lacking Jurisdiction

The first exception in Section 1.11 looks at the authority of the court that conducted the earlier proceeding. A prosecution is not a bar if the former prosecution was before a court that lacked jurisdiction over the defendant or the offense.⁶ Because the lead-in to Section 1.11 reaches Sections 1.08, 1.09, and 1.10 alike, this court-lacking-jurisdiction exception operates after a bar has been found: an acquittal or conviction that would otherwise satisfy the definitions in Section 1.08, or the routes in Section 1.10, loses its barring effect once the first court is shown to have lacked power.⁷ The reason lies in what a bar protects. A bar shields a defendant who was lawfully placed at risk in a proceeding that settled the matter, and a court with no power over the person or the offense cannot hold such a proceeding. Its judgment carries no legal force, so the defendant was never lawfully at risk and the interest of the sovereign with real authority was never adjudicated. If that empty proceeding could bar a valid one, an act of the wrong forum, whether chosen by mistake or by design, would immunize the defendant from the court that actually has authority.

This exception asks a different question from the one Section 1.10 asks at the outset. Section 1.10 requires first that the conduct fall within the concurrent jurisdiction of this State and the United States or another State, and that is a question about whether two sovereigns each have power to punish the same conduct.⁸ Section 1.11(1) turns to the court that conducted the first prosecution, so the focus shifts to the particular court that held the first proceeding and whether it had power to adjudicate this defendant and this offense.⁹ Both sovereigns can have undoubted power over the conduct while the court one of them used cannot lawfully hear the case, because the power of a given court is fixed by statute. In State v. Aiu, a Hawaii decision addressing a different former-prosecution question, the court identified which tribunal could have tried the charges by reading the statutes that gave the circuit courts jurisdiction over all criminal offenses cognizable under state law, while normally sending misdemeanors to the district court unless the trial was by jury.¹⁰ The analysis therefore has two separate checks, sovereign-level jurisdiction under Section 1.10 and court-level jurisdiction under this exception, and passing the first check says nothing about the second.

The provision names two defects, and they are alternatives. Lack of jurisdiction over the defendant concerns the court's power to reach this person. Civil practice supplies a useful comparison, although Section 1.11(1) borrows no civil test from it: in International Shoe Co. v. Washington the Supreme Court found the necessary ties because a corporation's activities in the forum state were systematic and continuous and the obligation sued upon arose from them, which made it reasonable and just to require the corporation to answer there.¹¹ The comparison shows what this prong asks, namely whether the forum had a legitimate claim of authority over the particular person before it. Lack of jurisdiction over the offense concerns instead the court's power to hear this kind of crime, which depends on the statutes assigning criminal cases to courts and on how authority is divided between sovereigns. Because the two are alternatives, the State need show only one of them, and a court with full power over the defendant but none over the offense, or the reverse, produced a proceeding that cannot bar.¹²

The reservation example shows the exception at work. In a decision described in a footnote to the opinion in Bartkus v. Illinois, white men who had killed an Indian on an Indian reservation had been tried in a state court, and when they were later indicted in a federal prosecution they pleaded the state trial as a former acquittal.¹³ The court hearing the federal indictment said that the state court before which they were tried "had no jurisdiction in the premises," so the state proceeding was "a nullity" and the defendants had never been tried for the offense charged in the indictment.¹⁴ The court also gave an alternative ground, that a state court with jurisdiction would have been trying an offense against state law and not the federal one, and that argument differs from the exception taught here.¹⁵ Because the footnote describes the decision as one on a demurrer to the plea, it settles only whether the plea stated a bar and does not report how the federal trial ended.¹⁶ The footnote labels the defect as a lack of jurisdiction without sorting it into power over the defendant or power over the offense, and under Section 1.11(1) no sorting is needed, since either alternative strips the first prosecution of its barring effect.¹⁷

Set beside the reservation case, the twin changes one fact: the court that held the first trial had power. In the reservation case the first proceeding was a nullity, while the acquittal in the twin is a real adjudication that the State can overcome only through the exceptions to route one or another part of Section 1.11. The exception turns on the court's power alone.¹⁸ The defendant's motives, the prosecutor's good faith, and the care taken at the first trial play no role, which marks the difference between this exception and the one for a prosecution procured by the defendant, taken up next.¹⁹ A finding that the court lacked jurisdiction does not by itself resolve the later case. It removes the first prosecution as a basis for a bar, and the second prosecution then proceeds on its own merits.

Prosecution Procured by Defendant

The reason for the exception lies in what a bar protects. A bar shields a defendant who faced a prosecution that a sovereign pursued in earnest, because that sovereign has already had its opportunity to answer for the conduct. A proceeding that the defendant arranged behind the prosecutor's back is not an exercise of that prosecutorial judgment. The incentive problem shows why the law cannot treat it as one. A defendant who controlled the forum, the charge, and the timing of the first prosecution would have every reason to choose the lightest available charge in the most lenient forum, take the result, and then plead it against the sovereign whose interest was actually at stake. The exception removes that incentive by refusing to count a prosecution the defendant engineered.

The three requirements guard against different failures, which is why the exception needs all of them. Procurement ties the sham to the defendant. Where a prosecutor independently brings a case and offers a lenient plea, the defendant has accepted what the sovereign chose to offer and has manipulated nothing. Lack of knowledge shows that no responsible officer exercised prosecutorial judgment over the proceeding, because an officer who knew of the arrangement and went ahead made the sovereign's own decision, and the outcome is then the sovereign's bargain. The purpose requirement does the subtlest work. Every bar spares the defendant a later sentence, so if avoiding a sentence as an effect were enough, no bar would ever survive the exception. The requirement asks instead whether the defendant set out to obtain that protection by means of the first prosecution. Because purpose is a state of mind, it is shown the way intent is shown elsewhere, through what the defendant did, such as the charge chosen and the timing of the plea. The provision also speaks of the appropriate prosecuting officer without specifying which jurisdiction's officer is meant, so a fact pattern will usually identify the prosecutor whose awareness is in question, and the analysis asks whether that officer knew of the arrangement.²⁵

The exception is easiest to see when all three requirements line up.

Changing a single fact removes the first requirement, and the result reverses.

The second requirement can be varied the same way while the other two stay fixed.

Students lose this issue when they see a suspiciously lenient result, infer collusion, and stop. A light sentence in the first prosecution proves none of the requirements by itself, and all three requirements must be met together before the first prosecution is stripped of its barring effect.²⁶ Like the other Section 1.11 exceptions, this one operates after a bar has been found, and because the lead-in reaches Sections 1.08, 1.09, and 1.10 alike, it applies to same-State bars as well as to prosecutions by other sovereigns.²⁷ A finding that the exception applies does not decide the later case. It takes away the first prosecution as a basis for a bar, and the State's prosecution then goes forward with guilt still to be proved. The remaining exception concerns a conviction that did not survive later attack, and it is taken up next.

Conviction Invalidated Collaterally

The first two exceptions in Section 1.11 look at the court that held the first proceeding and at what the defendant did to bring that proceeding about. The third looks at what became of the first judgment afterward. Under Section 1.11(3), a prosecution is not a bar if the former prosecution resulted in a judgment of conviction that was held invalid in a subsequent proceeding on a writ of habeas corpus, coram nobis, or similar process.³⁰ A writ of habeas corpus starts a separate proceeding in which a person asks a court to decide whether a conviction or confinement is lawful, and coram nobis is a comparable petition asking a court to set aside a final judgment because of a fundamental error. Lawyers call an attack of this kind a collateral attack, because it is launched in a new proceeding outside the original criminal case instead of inside that case on direct appeal. The collateral-attack exception therefore applies when a conviction that once stood has been wiped out by one of those later proceedings.

This exception has to be kept apart from the definition of conviction in Section 1.08. That definition counts a judgment of conviction only if it has not been reversed or vacated, and it counts a guilty verdict or an accepted guilty plea only in the circumstances it lists.³¹ A judgment that has been reversed or vacated falls outside the definition, so it is not a conviction that can support a bar under Section 1.10 in the first place. Section 1.11(3) covers a different sequence, in which the conviction stood, perhaps for years, and a later, separate proceeding then invalidated it. Treating every reversal as an application of this exception misplaces the analysis. The question to put to the facts is whether a later, separate proceeding on habeas corpus, coram nobis, or a similar writ held the judgment invalid.³²

The reason for the exception follows from what a bar protects. A bar rests on a judgment that lawfully put the defendant at risk and settled the matter, and a conviction held invalid settles nothing, because no valid judgment remains for the defendant to point to. The defendant's own role adds an incentive reason. The person who obtained the invalidation asked a court to remove the judgment. If the removed judgment kept its barring force, a successful attack on a defective conviction would release the defendant from the first sentence and would also shield the defendant from a second sovereign whose interest in punishing the conduct had never been answered by any valid judgment. The exception prevents that double benefit by keeping the bar tied to judgments that stand.

Changing one fact reverses the result.

The only difference between the two scenarios is whether a later proceeding invalidated the judgment, and that fact alone decides whether the first prosecution can still serve as a bar.³³ The text also limits the exception to a judgment of conviction.³⁴ An acquittal is not a judgment of conviction, so this subsection gives the State no way around an acquittal, which remains governed by Section 1.10 and by the other exceptions. Like the other Section 1.11 exceptions, this one operates after a bar has been found, and its lead-in reaches Sections 1.08, 1.09, and 1.10 alike.³⁵ A finding that the conviction was invalidated collaterally removes the first prosecution as a basis for a bar, and the State's case then proceeds with guilt still to be proved.