B. Acquittals after Deliberation of Verdict
In United States v. Martin Linen Supply Co., 430 U.S.
564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), the United
States Supreme Court held that the entry of a judgment
of acquittal when the jury could not reach agreement
barred an appeal and thus retrial. Martin, however, does
not foreclose the State’s appeal of a judgment of acquittal
entered by the court after a guilty verdict. See United
States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d
232 (1975) (dismissal after verdict appealable); State v.
Kleinwaks, 68 N.J. 328 (1975) (State may appeal
judgment of acquittal entered after jury has returned
guilty verdict). See also section E, infra.
C. Dismissals Pre-Trial
In Serfass v. United States, 420 U.S. 377, 95 S.Ct.
1055, 43 L.Ed.2d 265 (1975), the trial court dismissed
the indictment charging defendant with willful failure to
report for induction into the armed forces on double
jeopardy grounds. The trial court found that defendant
had established a prima facie claim for conscientious
objector status. The Supreme Court concluded that
since defendant had not waived his right to a jury trial and
no jury had been impaneled and sworn when the trial
court ruled, jeopardy had not attached and the dismissal
was an appealable order. The Supreme Court stressed
that the double jeopardy clause does not come into play
until the proceeding begins before a trier having
jurisdiction to try the question of guilt or innocence.
Since there was never a risk of a determination of guilt
before the draft board, jeopardy did not attach.
In Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680,
97 L.Ed.2d 1 (1987), defendant pleaded guilty pursuant
to an agreement to second-degree murder and promised
to testify against other participants in the murder, in
return for which he was to receive a favorable prison term
and specified actual incarceration time. Defendant
testified against the others, but their convictions were
reversed on appeal. At retrial, defendant again was asked
for cooperation, but he refused, claiming that his
obligation to testify ended when he was sentenced. The
government then charged defendant with first-degree
murder which he countered on double jeopardy grounds.
The Supreme Court held that prosecution for first-degree
murder did not violate double jeopardy principles, since
defendant’s breach of the plea agreement removed the
double jeopardy bar, assuming that under state law,
second-degree murder is a lesser-included offense of first-
degree murder. The Court analogized defendant’s
understanding of the consequences of his breach to a
waiver of his double jeopardy defense.In State v. Barksdale, 224 N.J. Super. 404 (App. Div.
1988), a juvenile defendant was charged with possession
and possession with intent to distribute crack. Relying
on State v. Gonzalez, 75 N.J. 181 (1977), the Family Part
judge granted defendant’s pre-trial motion to suppress
evidence seized during a warrantless search of an
automobile. On appeal by the State, the Appellate
Division affirmed the suppression order but found that
the Family Part judge should not have dismissed the
complaint against defendant after granting the
suppression motion. The Court further held that double
jeopardy was not implicated by the reinstatement of the
complaint against the juvenile defendant, since the
dismissal was only procedural and trial on the complaint
had never commenced.D. Dismissals at TrialIn United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187,
57 L.Ed.2d 65 (1978), the Court held that the
Government may appeal from the dismissal (on
defendant’s application) during trial of an indictment
where the dismissal is not based on a factual
determination of guilt or innocence. Thus, there could
be retrial in the event of reversal. The Court likened a
dismissal based on grounds unrelated to guilt or
innocence to a mistrial, cf. Lee v. United States, 432 U.S.
23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977), where
defendant’s motion generally permits retrial. The Court
concluded that an acquittal occurs only when “the ruling
of the judge, whatever its label, actually represents a
resolution [in the defendant’s favor], correct or not, of
some or all of the factual elements of the offense charged.”
The Court also ruled that “... where the defendant
himself seeks to have the trial terminated without any
submission to judge or jury as to guilt or innocence, an
appeal by the Government from his successful effort to do
so is not barred by 18 U.S.C. § 731,” which permits
appeals not barred by double jeopardy. The Court
expressly overruled United States v. Jenkins, 420 U.S. 358,
95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), which
prohibited retrial after midtrial dismissal.In Sanabria v. United States, 437 U.S. 54, 98 S.Ct.
2170, 57 L.Ed.2d 43 (1978), decided on the same day
as Scott, the Supreme Court made it clear that not all
midtrial dispositions are appealable. A midtrial ruling
resulted in the exclusion of evidence, and a judgment of
acquittal was entered. The Court emphasized the long-