Double Jeopardy in Illinois

May 13, 2019
 

Jennifer Pahre from the University of Illinois College of Law

University of Illinois College of Law

The Double Jeopardy Clause of the United States Constitution’s Fifth Amendment says that no person shall be  “…subject for the same offence to be twice put in jeopardy of life or limb...”  The basic notion is that the prosecution must present all its evidence in one and only one trial; a single chance is all it gets to prove its case. There are a few exceptions, and the Illinois Supreme Court, in People v. Drake, has now clarified one of the more interesting deviations.  

The case arose from serious burn injuries that a young boy sustained in a bathroom while in the care of his step-father, Gerald Drake.  In Drake’s trial for aggravated battery, the prosecution introduced testimony from a hospital nurse.  The nurse testified that the boy said he wanted to tell her something. And then, the boy told her that Gerald Drake had put hot water on him.

Other evidence was also introduced, including testimony from a physician who specializes in child abuse.  He said that the boy’s injuries were consistent with immersion in hot water.  There was testimony from an investigator that Gerald Drake was the only adult at home when the boy was hurt.  And Gerald Drake himself acknowledged in court that he falsely identified himself at the hospital.  But the nurse’s testimony was the only direct evidence that placed Drake in the bathroom with the boy.

At the end of the trial, Drake was found guilty.  On appeal, however, the reviewing court determined that the nurse’s testimony should not have been admitted, because her quoting what the boy said to her was hearsay.  Hearsay is an out-of-court statement used to prove the truth of what it says.  There are exceptions to the hearsay rule that can apply when a statement has some independent quality that makes it reliable.  But the exception the trial court used, that the statement was made for medical treatment, did not apply.  So, the appellate court found that the nurse’s statement should not have been admitted.  This meant that the verdict had to be thrown out, because the case was built upon the nurse’s testimony.  And this meant that Gerald Drake’s troubles were over, because he could not be retried without violating the Double Jeopardy Clause.

But the Illinois Supreme Court took a different view.  It found that there was plenty of testimony that implicated Drake: the physician, the investigator, Drake’s own statements, and the fact that he was the only adult present in the home when the injury occurred.  And while retrial could not occur if the evidence introduced at trial was insufficient to sustain a conviction, there can be a retrial if the evidence could reasonably support a finding of guilt beyond a reasonable doubt.  Finally, the Illinois Supreme Court said that the erroneously-admitted evidence may be included in that assessment.  So, because a juror could reasonably view all the evidence and find Drake guilty under the law, the Illinois Supreme Court determined that Gerald Drake may be retried. 

Supreme Court Justice Oliver Wendell Holmes once said, “…it is less evil that some criminals should escape than that the Government should play an ignoble part.”  But he also said, justice “…is due to the accuser...”  And now, Gerald Drake’s stepson will have his justice.