This Note argues that once the defendant raises a nonfrivolous double jeopardy claim that turns on a question of fact, the government should have the burden of proving that the two crimes charged are actually different. Part I traces the development of the law and the major factors behind recent federal court scrutiny of the traditional rule. Part II argues that constitutional considerations require courts to shift the burden of proof to the government, not only when practical considerations suggest the shift, but in all cases turning on questions of fact. Finally, Part III reconciles this allocation with the well-established criminal collateral estoppel rule that requires the defendant to show identity of the relevant issues.
Michigan Law Review,
The Burden of Proof in Double Jeopardy Claims,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol82/iss2/9