Double jeopardy
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- For other uses, see Double jeopardy (disambiguation).
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Double jeopardy (also called "autrefois acquit" meaning "already acquitted") is a procedural defense (and, in many countries such as the United States, Canada, Japan and India, a constitutional right) that forbids a defendant from being tried a second time for the same crime. At common law a defendant can plead autrefois acquit or autrefois convict; meaning the defendant has been acquitted or convicted of the same offence previously.
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[edit] Double jeopardy by country
[edit] Australia
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In all state jurisdictions prosecutors can appeal against the sentence handed down by the trial judge and in South Australia and Tasmania the prosecution can appeal against an error of law made by the trial judge in certain situations. However the acquittal will still stand valid and the purpose of the appeal is merely to clarify the relevant law for future cases.
In contrast to other common law jurisdictions, Australian double jeopardy law has been held to extend to the prevention of prosecution for perjury following a previous acquittal where a finding of perjury would controvert the previous acquittal. This was confirmed in the case of The Queen v Carroll, where the police found new evidence convincingly disproving Caroll's sworn alibi two decades after he had been acquitted of the murder of a young girl and successfully prosecuted him for perjury. Public outcry following the overturning of his conviction (for perjury) by the High Court has led to widespread calls for reform of the law along the lines of the UK legislation.
In September 2006, New South Wales Premier Morris Iemma announced plans to scrap the double jeopardy law in that state.[1]
[edit] Canada
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The Canadian Charter of Rights and Freedoms includes provisions such as section 11(h) prohibiting double jeopardy. But often this prohibition applies only after the trial is finally concluded, in contrast to the laws of the United States, Canadian law allows the prosecution to appeal from an acquittal. If the acquittal is thrown out, the new trial is not considered to be double jeopardy because the first trial and its judgement would have been annulled. In rare circumstances, a court of appeal might also substitute a conviction for an acquittal. This is not considered to be double jeopardy either - in this case the appeal and subsequent conviction are deemed to be a continuation of the original trial.
[edit] Europe
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All members of the Council of Europe (which includes nearly all European countries, and all members of the European Union) have signed the European Convention of Human Rights, which protects against double jeopardy. The Seventh Protocol, Article Four, says:
No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
This specific optional protocol has been ratified by all EU states except six (namely Belgium, Germany, The Netherlands, Portugal, Spain and the United Kingdom). Those members states may still have the provision in their respective constitutions providing a prohibition against double jeopardy.
In many European countries the prosecution may appeal an acquittal to a higher court (similar to the provisions of Canadian law) - this is not counted as double jeopardy but as a continuation of the same trial. This is allowed by the European Convention of Human Rights - note the word finally in the above quote.
[edit] France
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Once all appeals have been exhausted on a case, the judgment is final and the action of the prosecution is closed (code of penal procedure, art. 6), except if the final ruling was forged. Prosecution for an already judged crime is impossible even though new incriminating evidence has been found. However, a person who has been convicted may request another trial on grounds of new exculpating evidence.
[edit] England and Wales
Under English common law, there is an absolute prohibition on a second trial after an acquittal. This was initially brought in to protect those who were subject to both canon law and temporal law.
This strict common law double jeopardy rule in England was first qualified by the Criminal Procedure and Investigations Act 1996 [2], under which the prosecution can appeal an acquittal on grounds that witnesses or the jury were intimidated. However, the Act has never been used to seek a retrial.[3]
The MacPherson Report following the murder of Stephen Lawrence suggested that double jeopardy should be abrogated where "fresh and viable" new evidence came to light, and the Law Commission recommended in 2001 that it should be possible to subject an acquitted murder suspect to a second trial. The Parliament of the United Kingdom implemented these recommendations by passing the Criminal Justice Act 2003 [4], introduced by then Home Secretary David Blunkett. Under the 2003 Act, retrials are now allowed if there is "new" and "compelling" evidence for crimes, including murder, but also manslaughter, kidnapping, rape, armed robbery, and serious drugs crimes. All cases must be approved by the Director of Public Prosecutions, and the Court Of Appeal must agree to quash the original acquittal.[5]
The double jeopardy provisions of the 2003 Act came into force in April 2005.[6] On 11 September 2006, William Dunlop became the first person to be convicted of murder after previously being acquitted. Twice he was tried for the murder of Julie Hogg in Billingham in 1989, but two juries failed to reach a verdict and he was formally acquitted in 1991. Some years later, he confessed to the crime, and was convicted of perjury. The case was re-investigated in early 2005, when the new law came into effect, and his case was referred to the Court of Appeal in November 2005 for permission for a new trial.[7] [8] [9]
William Dunlop was re-tried and lodged a guilty plea, for the murder of Julie Hogg and sentenced to life imprisonment, with a recommendation he serve no less than 17 years.[10].
[edit] India
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In India, protection against double jeopardy is a Fundamental Right guaranteed under Right to Freedom in the Constitution of India. The provision enshrines the principle that a person cannot be tried twice for the same offence by any equally competent court. Thus a person cannot be tried for the offence of which he had been tried and acquitted or convicted.
[edit] United States
The phrase "double jeopardy" stems from the Fifth Amendment to the U.S. Constitution: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." This clause is intended to limit prosecutorial abuse by the government in repeated prosecution for the same offense, as a means of harassment or oppression. It is also in harmony with the common law concept of res judicata, which prevents courts from relitigating issues and claims that have already been the subject of a final judgment.
There are three essential protections included in double jeopardy: protection from being retried for the same crime after an acquittal; protection from retrial after a conviction; and protection from being punished multiple times for the same offense.
This law is occasionally referred to as a legal technicality, because it allows defendants a defense that does not address whether the crime was actually committed. For example, were police to uncover new evidence conclusively proving the guilt of someone previously acquitted, there is little they can do because the defendant may not be tried again (at least, not on the same or substantially similar charge) Fong Foo v. United States, 369 U.S. 141 (1962).
Though the Fifth Amendment initially applied only to the federal government, the Supreme Court has ruled that the double jeopardy clause applies to the states as well, through incorporation by the Fourteenth Amendment. (Benton v. Maryland.)
Jeopardy attaches in a jury trial once the jury and alternates are impanelled and sworn in. In a non-jury trial, jeopardy attaches once the first evidence is put on, which occurs when the first witness is sworn.
[edit] Exceptions to double jeopardy
As double jeopardy applies only to charges that were the subject of an earlier final judgment, there are many situations in which it does not apply despite the appearance of a retrial. For example, a second trial held after a mistrial does not violate the double jeopardy clause, because a mistrial ends a trial prematurely without a judgment of guilty or not guilty. Cases that have been dismissed because of insufficient evidence may constitute a final judgment for these purposes, though many state and federal laws allow for limited prosecutorial appeals from these orders. A re-trial after a conviction has been reversed on appeal also does not violate double jeopardy, because the judgment in the first trial has been invalidated. In both of these cases, however, the previous trials do not entirely vanish. Testimony from them may be used in later retrials, such as to impeach contradictory testimony given at any subsequent proceeding.
There are two exceptions to the general rule that the prosecution cannot appeal from an acquittal. If the earlier trial is proven to be a fraud or sham, double jeopardy will not prohibit a new trial. In Harry Aleman v. Judges of the Criminal Division, Circuit Court of Cook County, Illinois, et al., 138 F.3d 302 (1998), an appeals court ruled that a man who bribed his trial judge and was acquitted of murder was allowed to be tried again, because his bribe prevented his first trial from actually putting him in jeopardy. The other exception is that prosecutors may appeal when a trial judge sets aside a jury verdict for conviction with a judgment notwithstanding the verdict for the defendant. A successful appeal by the prosecution would simply reinstate the jury verdict, and so would not place the defendant at risk of another trial.
The Supreme Court has also upheld laws allowing the government to appeal criminal sentences in limited circumstances (such as 18 U.S.C. 3742(b)). The Court ruled that sentences were not accorded the same constitutional finality as jury verdicts under the double jeopardy clause, and giving this right of appeal also did not put the defendant at risk of a succession of prosecutions.
Double jeopardy is also not implicated for separate offenses or in separate jurisdictions arising from the same act. For example, in United States v. Felix (1992), the Supreme Court ruled: "a[n]...offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes."
As another example, a state might try a defendant for murder, after which the federal government might try the same defendant for a federal crime (perhaps a civil rights violation or kidnapping) related to the same act. For example, the Los Angeles Police Department officers charged with assaulting Rodney King in 1991 were acquitted by a county court, but some were later convicted and sentenced in federal court for violating his civil rights. Similar techniques were used for prosecuting racially-motivated crimes in the Southern United States in the 1960s during the time of the Civil Rights Movement, when those crimes had not been actively prosecuted, or had resulted in acquittals by juries thought to be racist or sympathetic to the accused in local courts.
The "separate sovereigns" exception to double jeopardy arises from the unique nature of the American federal system, in which states are considered to be sovereigns with plenary power that have relinquished a number of enumerated powers to the federal government. Double jeopardy attaches only to prosecutions for the same criminal act by the same sovereign, but as separate sovereigns, both the federal and state governments can bring separate prosecutions for the same act. For example, Timothy McVeigh was executed by the federal government for murdering eight federal employees with a bomb, but could also have been tried in state court for murdering numerous other persons in the same explosion.
Double jeopardy also does not attach if the later charge is civil rather than criminal in nature, which involves a different legal standard. Acquittal in a criminal case does not prevent the defendant from being the defendant in a civil suit relating to the same incident (though res judicata operates within the civil law system). For example, O.J. Simpson was acquitted of a double homicide in a California criminal prosecution, but lost a civil wrongful death claim brought over the same victims. If the defendant happened to be on parole from an earlier offense at the time, the act for which he was acquitted may also be the subject of a parole violation hearing, which is not considered a criminal trial and is also subject to a lower standard of proof.
The protection afforded by double jeopardy is also only a clause which protects individuals from being punished more than once for the same or similar felonly charge. The Supreme Court has never given the misdemeanor offenses protection under the double jeopardy clause. For instance a Public Intoxication charge by a city is subject to a separate punishment by a university or other institution without these punishments being an infringement upon those rights afforded by the 5th Amendment and 14th Amendment to the Constitution.
[edit] See also
- Dutch and German law: Ne bis in idem
