West v. Commonwealth - Subject: Double Jeopardy and the ends of justice exception under Va Supreme Court Rule 5A:18
(1) If the prosecutor mentions double jeopardy concerns in his argument against the Defense's motion to strike the evidence and the only time the Defense mentions double jeopardy concerns is in the sentencing hearing when he states that the prosecution must elect between the two charges it is not enough to preserve the double jeopardy argument for an appeal.
(2) The "ends of justice" exception can be invoked when some crucial procedures are not followed by the trial court, i.e. jury instructions without the proper elements of the alleged crime.
However, the fact that an error is a clear, substantial, material violation of the constitutional bar against double jeopardy is not enough to qualify for the ends of justice exception. This argument is labeled "tautological."
Comment: Yeah, I had to look up tautological to make sure I had the right definition. I understood it to mean "self-sustaining only under its own internal logic." I think that's basically correct but I checked anyway. Webster online defines it as "true by virtue of its logical form alone" and Webster's 3d New International defines it as "true purely by the meanings of component terms."
So, if I'm understanding the term correctly the court says that it is only internally logical to the petitioner's argument that a clear, substantial, material violation of the constitution's bar against double jeopardy is an unjust error. When viewed outside the petitioner's argument there is no unjust error even if the constitutional right against double jeopardy has been violated (a number of cases are cited). The Rules of the Supreme Court of Virginia trump the United States Constitution.