In Brown v. Ohio, 432 U. S. 161, the United States Supreme Court suggested by way of footnote "an exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." (Id. at p. 169, fn. 7.)
A different exception was recognized in Jeffers v. United States (1977) 432 U.S. 137.
In Jeffers, the defendant, who had been convicted in the two separate prosecutions on two separate indictments, asserted that the second prosecution placed him twice in jeopardy because he had already been convicted of lesser included offenses in the first prosecution. (Id. at pp. 145-146.)
A four-justice plurality of the United States Supreme Court rejected this double jeopardy claim, noting that the government had affirmatively sought a single trial but the defense had successfully opposed consolidation. (Id. at pp. 142-143, 152, fn. 20.)
The plurality opinion concluded that double jeopardy protection did not apply where a "defendant expressly asks for separate trials on the greater and the lesser offenses, or, in connection with his opposition to trial together, fails to raise the issue that one offense might be a lesser included offense of the other ... ." (Id. at p. 152.)
The defendant in Jeffers had argued that he had not waived the constitutional guarantee against double jeopardy (id. at pp. 146-147), but the Supreme Court did not squarely rest its decision on whether or not the defendant had intentionally relinquished a known right (see Johnson v. Zerbst (1938) 304 U.S. 458, "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege") but rather on the "policy behind the Double Jeopardy Clause." (Jeffers, supra, 432 U.S. at p. 152.)
The plurality opinion reasoned:
"Both the trial after the appeal and the trial after the mistrial are, in a sense, a second prosecution for the same offense, but, in both situations, the policy behind the Double Jeopardy Clause does not require prohibition of the second trial. Similarly, although a defendant is normally entitled to have charges on a greater and a lesser offense resolved in one proceeding, there is no violation of the Double Jeopardy Clause when he elects to have the two offenses tried separately and persuades the trial court to honor his election." (Ibid., fn. omitted.) The Jeffers court concluded that the petitioner was "solely responsible for the successive prosecutions" and "his action deprived him of any right that he might have had against consecutive trials." (Id. at p. 154.)