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Downum v. United States | 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963)

If the prosecution starts a criminal trial when a key witness isn’t available, is it ever proper for the court to discharge the jury and retry the defendant at a later date? We explore that question in Downum versus United States.

The United States charged Raymond Downum with mail theft and forging stolen checks. Rutledge was a key government witness on several counts because he was the payee on some of the stolen checks.

Downum’s case was called for trial on April twenty fifth, nineteen sixty one. It had been set for call several days earlier. At that time, the prosecutor prepared subpoenas for the government’s witnesses and delivered them to the marshal for service. On April twenty fourth, the prosecutor’s assistant checked with the marshal regarding service on Rutledge. The marshal advised that Rutledge hadn’t been served. Rutledge’s wife didn’t know where he was but had agreed to let the marshal know if she found out. Rutledge’s wife never got back to the marshal, and no one from the prosecution followed up.

When Downum’s case was called for trial, both sides announced that they were ready. They selected and empaneled a jury. That afternoon, before any evidence had been presented, the prosecutor asked the district court to discharge the jury because Rutledge wasn’t present. The district court denied Downum’s request to dismiss the counts on which Rutledge was a key witness, and it discharged the jury over Downum’s objection.

Two days later, a second jury was empaneled for Downum’s case. Downum pleaded double jeopardy. The district court overruled Downum’s plea. The jury convicted. Downum appealed to the Fifth Circuit, which affirmed. The United States Supreme Court granted cert.

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