How Can You be Prosecuted in Federal Court After a State Prosecution for the Same Act

Taxing Matters;

this is a tangent off the issue at hand and doesn't address any issues concerning the issue at hand but I've never seen the res judicata explained so thoroughly such that it makes a similar situation in criminal law seem so wrong.

you have stated, basically, that res judicata applies when an action has been adjudicated in a state court and a party attempts to take the matter to a federal court (and I presume the reverse applies as well). If true, how can a person be tried in both state and federal court for the same criminal acts. Since it has been ruled to not be a double jeopardy issue when doing so, how can the much more serious and protected issue of being criminally charged be allowed to proceed in both state and federal courts when the similar civil action is barred?

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Quoting jk

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Taxing Matters;

this is a tangent off the issue at hand and doesn't address any issues concerning the issue at hand but I've never seen the res judicata explained so thoroughly such that it makes a similar situation in criminal law seem so wrong.

you have stated, basically, that res judicata applies when an action has been adjudicated in a state court and a party attempts to take the matter to a federal court (and I presume the reverse applies as well).

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The example I used was bringing the claim in state court and then filing the same exact claim involving the same parties in federal court. It would apply just as well in the reverse. Or filing the same claim involving the same parties in two different states or in two different courts of the same state.

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Quoting jk

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If true, how can a person be tried in both state and federal court for the same criminal acts. Since it has been ruled to not be a double jeopardy issue when doing so, how can the much more serious and protected issue of being criminally charged be allowed to proceed in both state and federal courts when the similar civil action is barred?

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One of the requirements for res judicata in civil litigation is that the parties to the case are the same. Thus, suppose that Amy purports to sell to Becky and Charles the Golden Gate Bridge. Amy of course does not own the Golden Gate Bridge. She committed fraud. One that one set of facts, there are two civil causes of action for fraud — Becky could sue Amy and Charles could sue Amy in separate court actions. Let’s say that Becky sues first and wins. Charles' lawsuit against Amy would not be barred by res judicata because he is not the same party that sued Becky in the first action. Becky was the party that sued Amy in the first action. Moreover, again on the same facts, the state could prosecute Amy for criminal fraud. Becky’s lawsuit against Amy would not bar that action either because the state is a different party and a criminal proceeding is a distinctly different kind of proceeding than a civil lawsuit.

Turning now to applying double jeopardy to a prosecution on the same facts in both federal and state court, the principle of res judicata would not apply either because like the fraud Amy committed against both Becky and Charles with a single act, the criminal defendant has with one act violated the laws of two separate sovereign governments: the federal government and the state government. Viewed from a res judicata perspective, the federal government and the state are different parties bringing the claims, just as Becky and Charles are each different parties bringing the same civil fraud claim. Each sovereign has a significant interest in prosecuting its own criminal law violations, and that interest cannot be allowed to be frustrated simply because another sovereign gets the jump on it and prosecutes first.

This aspect of double jeopardy has been discussed before on these boards. Someone tried to make the argument that the government is somehow different and that all levels of government in this country ought to be viewed as one gigantic government such that the federal and state prosecutions would in fact be done by the same party. But that is not how the U.S. is set up. Ours is a truly federal system: the states and the federal government are each independent sovereigns. The states can and do have differing laws and differing policies from the federal government. Because of that, the courts have recognized they are separate parties when it comes to criminal prosecution (and for civil lawsuits, too, of course) and thus double jeopardy does not preclude the prosecution by both of a crime nor would res judicata bar a lawsuit by both the federal and state government against the same defendant on the same set of facts. The same concept would apply to a prosecution by two different states for the same criminal act (though factually its harder to come up with those situations) as each state is a different party.

The bottom line is that the concept of prosecuting a criminal defendant for the same crime in both federal and state courts would not violate the principles of res judicata because the prosecuting party (analogous to the plaintiff in a civil case) is different in the two prosecutions. Remember, the idea behind res judicata is to give any particular plaintiff no more than one bite at the apple in his/her claim against a particular defendant. It is not meant to deny the right of a different plaintiff to bring his/her claim. Double jeopardy is meant to allow a particular sovereign no more than one bite at the apple in its criminal prosecution of any particular defendant. It is not meant to deny the right of a different sovereign to prosecute that defendant for the violation of its law.

Thanks. While I disagree with how one can be prosecuted by both state and federal entities for the same actions, I have no choice but to accept it. To me, for the purposes of
prosecution of an illegal act twice defines the statement; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;

it doesn't say ; can't be put in jeopardy twice unless different government entities shall prosecute the crime. It simply says; can't be put in jeopardy for the same offense twice.

Obviously the current interpretation deems federal and state levels of prosecution to be two seperate offenses. I will never accept that as being a reasonable interpretation of the Constitution. It's unjust and allows for some pretty sneaky games to be played with defendants.

I would see it no different than res judicata in a civil suit where one can choose different jurisdictions (one state over another) yet it cannot be prosecuted in a second one if it failed in the first. Yes, for the purposes of the criminal prosecution I do see "the gov" as a single entity. Prosecuting in state then federal courts or vice versa really is more a matter of venue shopping than prosecution of two seperate offenses and just as in a civil suit, you shouldn't get a second bite at the apple.

So yes, in my interpretarion, offense refers to the act itself, not simply the same essential statute but from a different level of government.



But this brings me to a question of a similar basis ;

can a person be prosecuted for an act by both a local government entity (such as a city court) under a city ordinance and also by the state under a state law for the same act when the ordinance and law are addressing the same act?

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Quoting Taxing Matters

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The example I used was bringing the claim in state court and then filing the same exact claim involving the same parties in federal court. It would apply just as well in the reverse. Or filing the same claim involving the same parties in two different states or in two different courts of the same state.



One of the requirements for res judicata in civil litigation is that the parties to the case are the same. Thus, suppose that Amy purports to sell to Becky and Charles the Golden Gate Bridge. Amy of course does not own the Golden Gate Bridge. She committed fraud. One that one set of facts, there are two civil causes of action for fraud — Becky could sue Amy and Charles could sue Amy in separate court actions. Let’s say that Becky sues first and wins. Charles' lawsuit against Amy would not be barred by res judicata because he is not the same party that sued Becky in the first action. Becky was the party that sued Amy in the first action. Moreover, again on the same facts, the state could prosecute Amy for criminal fraud. Becky’s lawsuit against Amy would not bar that action either because the state is a different party and a criminal proceeding is a distinctly different kind of proceeding than a civil lawsuit.

Turning now to applying double jeopardy to a prosecution on the same facts in both federal and state court, the principle of res judicata would not apply either because like the fraud Amy committed against both Becky and Charles with a single act, the criminal defendant has with one act violated the laws of two separate sovereign governments: the federal government and the state government. Viewed from a res judicata perspective, the federal government and the state are different parties bringing the claims, just as Becky and Charles are each different parties bringing the same civil fraud claim. Each sovereign has a significant interest in prosecuting its own criminal law violations, and that interest cannot be allowed to be frustrated simply because another sovereign gets the jump on it and prosecutes first.

This aspect of double jeopardy has been discussed before on these boards. Someone tried to make the argument that the government is somehow different and that all levels of government in this country ought to be viewed as one gigantic government such that the federal and state prosecutions would in fact be done by the same party. But that is not how the U.S. is set up. Ours is a truly federal system: the states and the federal government are each independent sovereigns. The states can and do have differing laws and differing policies from the federal government. Because of that, the courts have recognized they are separate parties when it comes to criminal prosecution (and for civil lawsuits, too, of course) and thus double jeopardy does not preclude the prosecution by both of a crime nor would res judicata bar a lawsuit by both the federal and state government against the same defendant on the same set of facts. The same concept would apply to a prosecution by two different states for the same criminal act (though factually its harder to come up with those situations) as each state is a different party.

The bottom line is that the concept of prosecuting a criminal defendant for the same crime in both federal and state courts would not violate the principles of res judicata because the prosecuting party (analogous to the plaintiff in a civil case) is different in the two prosecutions. Remember, the idea behind res judicata is to give any particular plaintiff no more than one bite at the apple in his/her claim against a particular defendant. It is not meant to deny the right of a different plaintiff to bring his/her claim. Double jeopardy is meant to allow a particular sovereign no more than one bite at the apple in its criminal prosecution of any particular defendant. It is not meant to deny the right of a different sovereign to prosecute that defendant for the violation of its law.

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This is the best explanation of res judicata I've ever read.

I actually understand what you're saying and I cannot thank you enough!

(sorry, jk - I'm not usually a hijacker ;) )

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Quoting Dogmatique

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This is the best explanation of res judicata I've ever read.

I actually understand what you're saying and I cannot thank you enough!

(sorry, jk - I'm not usually a hijacker ;) )

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at worst you hijacked a hijack as I did exactly that but I couldn't resist the opportunity to laud tm as well as ask what I did.

Repeating Doggie's comment. I finally actually get it. Thanks, Tax!

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Quoting jk

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Thanks. While I disagree with how one can be prosecuted by both state and federal entities for the same actions, I have no choice but to accept it. To me, for the purposes of prosecution of an illegal act twice defines the statement; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; it doesn't say ; can't be put in jeopardy twice unless different government entities shall prosecute the crime. It simply says; can't be put in jeopardy for the same offense twice.

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But bear in mind our founders very much understood that they were setting up a federal system and that until the 14th Amendment was adopted the federal constitution only applied to the federal government. Nothing in it restricted or regulated the states in any way. Even the first amendment was a restriction only on the federal government. States were free to restrict the press, restrict religion, etc. without violating the federal constitution. Thus, the double jeopardy restriction in the federal constitution was only applied to the federal government. It did not apply to the states at all. They could have tried defendants more than once and not violated the Constitution. Of course states generally adopted similar rights and protections into their constitutions and laws, too, but nothing in the federal Constitution required that. Given that historical background it is clear that the framers thought the federal and state governments were indeed quite distinctly different entities and that while the federal government was restricted from itself prosecuting a defendant twice, that restriction did not at all bar the state prosecution. The founders deliberately set it up that way and thus would not find the case law on this, which is longstanding, to be at all odd.

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Quoting jk

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Obviously the current interpretation deems federal and state levels of prosecution to be two seperate offenses. I will never accept that as being a reasonable interpretation of the Constitution. It's unjust and allows for some pretty sneaky games to be played with defendants.

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I respect your viewpoint that the prosecution by both the feds and the state should not be allowed. But I do not share your opinion on that. I think that applying your concept would encourage prosecutors to race to charge defendants in order to ensure they go first and get to vindicate the laws of their jurisdiction, and in the process blocking the legitimate interests of the other government (either federal government or that of some state as the case may be) in enforcing its laws. That would put defendants in the position of facing a race to prosecute them without perhaps taking the time to fully investigate and consider whether the charges really ought to be brought. It also raises prospects of one jurisdiction potentially acting intentionally to bar the other from enforcing its laws. Thus, from both a defendants perspective and that of the state, it could present unwanted effects to do as you suggest.

I do not see the current system as unjust since the criminal laws are public information and anyone committing a crime can figure out that what he or she is doing violates both federal and state law and that he or she may be prosecuted and punished for both. So if they commit that crime anyway, they take that risk upon themselves. I don’t know what “sneaky games” you think would be played with defendants given that the law is public and the defendant (and his/her lawyers) ought to know what the deal is.

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Quoting jk

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I would see it no different than res judicata in a civil suit where one can choose different jurisdictions (one state over another) yet it cannot be prosecuted in a second one if it failed in the first. Yes, for the purposes of the criminal prosecution I do see "the gov" as a single entity. Prosecuting in state then federal courts or vice versa really is more a matter of venue shopping than prosecution of two seperate offenses and just as in a civil suit, you shouldn't get a second bite at the apple.

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I realize that you want to see the government for this purpose as one big entity because you feel so strongly that the dual prosecution is wrong, but the reality is that they are not the same. One only has to look at soon to be President Trump and the Republican dominated Congress on the one hand and, say, Governor Brown of California and the Democratically controlled legislature of that state on the other to understand that a state may have very different interests, policies, and outlook than does the federal government and each is entitled to enforce its laws. The prosecutors in the two cases are not the same, the federal prosecution being done by the U.S. Attorney and the state prosecution by the district attorney (or whatever the prosecutor is for that state) and they have differing policies and priorities. It is thus not at all like the case of Amy in the civil setting trying to sue Barry in state court first and then when she loses suing Barry again on the same claim in federal court. Amy is clearly the same person with the same interests and same priorities in both cases. There is no real difference in the two cases at all except the forum in which they are brought. Not so with dual prosecution. The governments prosecuting are different and the laws being applied are different, too. While the underlying act may be the basis for both prosecutions, what the prosecutor needs to prove in each case may be different. All this to say that while you strongly want the states and federal government lumped together for this purpose, you are ignoring the reality of how the our system is set up and operates by lumping them together.

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Quoting jk

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But this brings me to a question of a similar basis ; can a person be prosecuted for an act by both a local government entity (such as a city court) under a city ordinance and also by the state under a state law for the same act when the ordinance and law are addressing the same act?

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The answer to that is no. Muncipalities are not sovereign entities. They are created by, and their powers prescribed by, the state legislature — the same state legislature that enacts the state criminal laws and that creates the state court system in which all crimes are tried. On this basis the Supreme Court held that double jeopardy is a bar to a subsequent prosecution in a Florida state court after a prosecution in that state’s municipal court. “Thus, Grafton, not Fox v. Ohio, supra, or its progeny, Bartkus v. Illinois, supra, or Abbate v. United States, supra, controls, and we hold that, on the basis of the facts upon which the Florida District Court of Appeal relied, petitioner could not lawfully be tried both by the municipal government and by the State of Florida.” Waller v. Florida, 397 U.S. 387 (1970)

By the way, while I do not support your position of applying double jeopardy to completely bar prosecution by the federal government after a state prosecution (or vice versa) there is an idea that I might well support. That is the concept of allowing the dual prosecution but requiring that the second jurisdiction credit the defendant with the punishment (if any) that was imposed as a result of the first prosecution such that the defendant would face the possibility of a combined sentence no more than most severe sentence of the two jurisdictions rather than the facing serving the maximum sentence for both offenses. For example suppose that in state court the defendant was sentenced to five years in prison. The feds prosecute and the defendant is sentenced to ten years on that offense, but then is credited with the five years already sentenced by the state, so that he or she only has to serve an additional five years for the federal crime. That would have the effect of the defendant effectively only serving the amount of time for the federal crime. This approach has its problems, too, but may be the best bridge between the objections you have while still protecting the legitimate interests of each sovereign in enforcing its laws. This is sometimes now done by sentencing judges in the second prosecution by, for example, imposing the sentence in the second case to run concurrently with the sentence imposed in the first case rather than consecutively. But it is not something the law currently requires in all instances of dual prosecution.

I will end by noting that frequently the federal and state governments do coordinate on these situations and often one will cede prosecution to the other, satisfied that the other prosecution is sufficient to meet its own interests (and to save money as well). No law requires that, but the feds and the state often see mutual benefit in that kind of cooperation. So in many cases where it may be possible for dual prosecution to occur, in practice that is more the exception than the rule.

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Quoting ChristieG

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Repeating Doggie's comment. I finally actually get it. Thanks, Tax!

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And thanks for the positive comments by everyone as to the clarity of my explanations (even if you don’t agree with the substance). :D I have spent many years trying to explain the complex (and sometimes confusing) tax law to clients, judges, other lawyers who do not practice tax law, and others and have worked hard to develop ways to give plain English explanations of difficult or arcane legal stuff and its nice to hear when I have succeeded in doing that.

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I guess the most basic objection comes down to a citizen is beholding to two sovereigns at the same time. The words to describe this well elude me at the moment but with that, what it basically means there are two kings we must answer to. That is what is unjust. While you argued it could present issues if only one is allowed to prosecute, just the same, allowing both to prosecute can allow a person to be penalized an excessive amount as each sovereign can impose the max available in their respective jurisdictions with the underlying intent the defendant be penalized more than they are able to impose individually.

Maybe your idea of coordinated penalties that do not allow a maximum of the greater of the two jurisdictions is the best means of addressing my concerns.

I’m not seeing the original post, so I’m not sure what exactly the question is. But, based on the subject line, you might Google these names: Laurence Powell, Stacey Koon, Timothy Wind, and Theodore Briseno.

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Quoting PTPD22

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I’m not seeing the original post, so I’m not sure what exactly the question is.

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In this case the original post had to do with a situation in which the OP was being sued by his ex-wife in two different states and was asking whether the lawsuit in one of the states might be barred by res judicata. So it had nothing to do with double jeopardy and you’re not missing anything from the double jeopardy discussion. It was just that the principle of res judicata is somewhat similar to the double jeopardy prohibition that prompted the question at the start of this now separate thread.