Brock v. North Carolina/Concurrence Frankfurter

Mr. Justice FRANKFURTER, concurring.

Once it is agreed that the claim here made-freedom from being tried a second time on a criminal charge-must be tested by the independent scope of the Due Process Clause of the Fourteenth Amendment and not on the basis of the incorporation of the Fifth Amendment into the Fourteenth, the application of the guarantee of due process to a specific situation makes relevant the specific phrasing of a common result. I, therefore, deem it appropriate to add a word to the Court's opinion, in which I join.

The judicial history of the Fifth Amendment in prohibiting any person from being 'subject for the same offence to be twice put in jeopardy of life or limb' serves as a good pragmatic confirmation of the compelling reasons why the original Bill of Rights was found to limit the actions of the Federal Government and not those of the States. The conflicting views expressed in Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114; Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292; In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500; and Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974, indicate the subtle technical controversies to which the provision of the Fifth Amendment against double jeopardy has given rise. Implications have been found in that provision very different from the mood of fair dealing and justice which the Fourteenth Amendment exacts from a State in the prosecution of offenders. A State falls short of its obligation when it callously subjects an individual to successive retrials on a charge on which he has been acquitted or prevents a trial from proceeding to a termination in favor of the accused merely in order to allow a prosecutor who has been incompetent or casual or even ineffective to see if he cannot do better a second time.

Unless we can say that the trial judge was not justified in the circumstances of this case in concluding that the ground for requesting a mistrial was fair and not oppressive to the accused, we would not be warranted in finding that the State of North Carolina, through its Supreme Court, denied the petitioner due process of law. The record does not seem to me to justify such a finding.

Mr. Chief Justice VINSON, dissenting.