Double jeopardy

Last updated

Double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal and in rare cases prosecutorial and/or judge misconduct in the same jurisdiction. [1] A variation in common law countries is the peremptory plea, which may take the specific forms of autrefois acquit ('previously acquitted') or autrefois convict ('previously convicted'). These doctrines appear to have originated in ancient Roman law, in the broader principle non bis in idem ('not twice against the same'). [2]

Contents

If a double-jeopardy issue is raised, evidence will be placed before the court, which will typically rule as a preliminary matter whether the plea is substantiated; if it is, the projected trial will be prevented from proceeding. In some countries certain exemptions are permitted. In Scotland a new trial can be initiated if, for example, the acquitted has made a credible admission of guilt. Part of English law for over 800 years, it was partially abolished in England, Wales and Northern Ireland by the Criminal Justice Act 2003 where, following demand for change, serious offences may be re-tried following an acquittal if new and compelling evidence is found and for the trial to be in the public's interest. [3] In some countries, including Canada, Mexico, and the United States, the guarantee against being "twice put in jeopardy" is a constitutional right. [4] [5] In other countries, the protection is afforded by statute. [lower-alpha 1]

In common law countries, a defendant may enter a peremptory plea of autrefois acquit ('previously acquitted') or autrefois convict ('previously convicted'), with the same effect. [7] [lower-alpha 2]

Double jeopardy is not a principle of international law. It does not apply between different countries, unless having been contractually agreed on between those countries as, for example, in the European Union (Art. 54 Schengen Convention), and in various extradition treaties between two countries.

International Covenant on Civil and Political Rights

The 72 signatories and 166 parties to the International Covenant on Civil and Political Rights recognise, under Article 14 (7): "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." However, it does not apply to prosecutions by two different sovereigns (unless the relevant extradition treaty expresses a prohibition).

European Convention on Human Rights

All members of the Council of Europe (which includes nearly all European countries and every member of the European Union) have adopted the European Convention on Human Rights. [9] The optional Protocol No. 7 to the convention, Article 4, protects against double jeopardy: "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 or she has already been finally acquitted or convicted in accordance with the law and penal procedure of that State." [10]

All EU states ratified this optional protocol except for Germany, the United Kingdom, and the Netherlands. [11] In those member states, national rules governing double jeopardy may or may not comply with the provision cited above.

Member states may, however, implement legislation which allows reopening of a case if new evidence is found or if there was a fundamental defect in the previous proceedings: [10]

The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

In many European countries, the prosecution may appeal an acquittal to a higher court.[ citation needed ] This is not regarded as double jeopardy, but as a continuation of the same case. The European Convention on Human Rights permits this by using the phrase "finally acquitted or convicted" as the trigger for prohibiting subsequent prosecution.

By country

Australia

In contrast to other common law nations, Australian double jeopardy law has been held to further prevent the prosecution for perjury following a previous acquittal where a finding of perjury would controvert the acquittal. This was confirmed in the case of R v Carroll , where the police found new evidence convincingly disproving Carroll's sworn alibi two decades after he had been acquitted of murder charges in the death of Ipswich child Deidre Kennedy, and successfully prosecuted him for perjury. Public outcry following the overturn of his conviction (for perjury) by the High Court has led to widespread calls for reform of the law along the lines of the England and Wales legislation.

During a Council of Australian Governments (COAG) meeting of 2007, model legislation to rework double jeopardy laws was drafted, [12] but there was no formal agreement for each state to introduce it. All states have now chosen to introduce legislation that mirrors COAG's recommendations on "fresh and compelling" evidence.

In New South Wales, retrials of serious cases with a minimum sentence of 20 years or more are now possible even if the original trial preceded the 2006 reform. [13] On 17 October 2006, the New South Wales Parliament passed legislation abolishing the rule against double jeopardy in cases where:

On 30 July 2008, South Australia also introduced legislation to scrap parts of its double jeopardy law, legalising retrials for serious offences with "fresh and compelling" evidence, or if the acquittal was tainted. [14]

In Western Australia, amendments introduced on 8 September 2011 allow retrial if "new and compelling" evidence is found. It applies to serious offences where the penalty was life imprisonment or imprisonment for 14 years or more. Acquittal because of tainting (witness intimidation, jury tampering, or perjury) also permits retrial. [15] [16]

In Tasmania, on 19 August 2008, amendments were introduced to allow retrial in serious cases if there is "fresh and compelling" evidence. [17]

In Victoria on 21 December 2011, legislation was passed allowing new trials where there is "fresh and compelling DNA evidence, where the person acquitted subsequently admits to the crime, or where it becomes clear that key witnesses have given false evidence". [12] However, retrial applications could only be made for serious offences such as murder, manslaughter, arson causing death, serious drug offences and aggravated forms of rape and armed robbery. [18]

In Queensland on 18 October 2007, the double jeopardy laws were modified to allow a retrial where fresh and compelling evidence becomes available after an acquittal for murder or a "tainted acquittal" for a crime carrying a 25-year or more sentence. A "tainted acquittal" requires a conviction for an administration of justice offence, such as perjury, that led to the original acquittal. Unlike reforms in the United Kingdom, New South Wales, Tasmania, Victoria, South Australia and Western Australia, this law does not have a retrospective effect, which is unpopular with some advocates of the reform. [19]

Canada

The Canadian Charter of Rights and Freedoms includes provisions such as section 11(h) prohibiting double jeopardy. However, the prohibition only applies after an accused person has been "finally" convicted or acquitted. Canadian law allows the prosecution to appeal an acquittal. If the acquittal is thrown out, the new trial is not considered to be double jeopardy since the verdict of the first trial is annulled. In rare circumstances, a court of appeal might also substitute an acquittal for a conviction. That is not considered double jeopardy since the appeal and the subsequent conviction are then deemed to be a continuation of the original trial.

For an appeal from an acquittal to be successful, the Supreme Court of Canada requires the Crown to show that an error in law was made during the trial and that it contributed to the verdict. It has been argued that this test is unfairly beneficial to the prosecution. For instance, in his book My Life in Crime and Other Academic Adventures, Martin Friedland contends that the rule should be changed so that a retrial is granted only when the error is shown to be responsible for the verdict, not just a factor.

A notable example is Guy Paul Morin, who was wrongfully convicted in his second trial after the acquittal in his first trial was vacated by the Supreme Court of Canada.

In the Guy Turcotte case, for instance, the Quebec Court of Appeal overturned Turcotte's not criminally responsible verdict and ordered a second trial after it found that the judge committed an error in the first trial while instructions were given to the jury. Turcotte was later convicted of second-degree murder in the second trial.

France

Once all appeals have been exhausted on a case, the judgement is final and the action of the prosecution is closed (code of penal procedure, art. 6), except if the final ruling was forged. [20] Prosecution for a crime already judged is impossible even if incriminating evidence has been found. However, a person who has been convicted may request another trial on the grounds of new exculpating evidence through a procedure known as révision. [21]

French law allows the prosecution to appeal an acquittal.

Germany

The Basic Law (Grundgesetz) for the Federal Republic of Germany protects against double jeopardy if a final verdict is pronounced. A verdict is final if nobody appeals against it.

Nobody shall be punished multiple times for the same crime on the basis of general criminal law.

Art. 103 (3) GG [22] [23]

However, each trial party can appeal against a verdict in the first instance. The prosecution or the defendants can appeal against a judgement if they disagree with it. In this case, the trial starts again in the second instance, the court of appeal (Berufungsgericht), which reconsiders the facts and reasons and delivers a final judgement.

If one of the parties disagrees with the second instance's judgement, they can appeal it only for formal judicial reasons. The case will be checked in the third instance (Revisionsgericht), whether all laws are applied correctly.

The rule applies to the whole "historical event, which is usually considered a single historical course of actions the separation of which would seem unnatural". This is true even if new facts occur that indicate other crimes.

The Penal Procedural Code (Strafprozessordnung) permits a retrial (Wiederaufnahmeverfahren), if it is in favour of the defendant or if the following events had happened:

A retrial not in favour of the defendant is permissible after a final judgement,

  1. if a document that was considered authentic during the trial was actually not authentic or forged,
  2. if a witness or authorised expert wilfully or negligently made a wrong deposition or wilfully gave a wrong simple testimony,
  3. if a professional or lay judge, who made the decision, had committed a crime by violating his or her duties as a judge in the case
  4. if an acquitted defendant makes a credible confession in court or out of court.
    § 362 StPO

In the case of an order of summary punishment, which can be issued by the court without a trial for lesser misdemeanours, there is a further exception:

A retrial not in favour of the defendant is also permissible if the defendant has been convicted in a final order of summary punishment and new facts or evidence have been brought forward, which establish grounds for a conviction of a felony by themselves or in combination with earlier evidence.

§ 373a StPO

In Germany, a felony is defined by § 12 (1) StGB as a crime that has a minimum of one year of imprisonment.

India

A partial protection against double jeopardy is a Fundamental Right guaranteed under Article 20 (2) of the Constitution of India, which states "No person shall be prosecuted and punished for the same offence more than once". [24] This provision enshrines the concept of autrefois convict, that no one convicted of an offence can be tried or punished a second time. However, it does not extend to autrefois acquit, and so if a person is acquitted of a crime he can be retried. In India, protection against autrefois acquit is a statutory right, not a fundamental one. Such protection is provided by provisions of the Code of Criminal Procedure rather than by the Constitution. [25]

Japan

The Constitution of Japan, which came into effect on May 3, 1947, states in Article 39 that

No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy.

However, in 1950, one defendant was found guilty in the District Court for crimes related to the election law and was sentenced to paying a fine. The prosecutor wanted a stronger sentence and appealed to the High Court. As a result, the defendant was sentenced to three months of imprisonment. He appealed to the Supreme Court on the grounds that the sentence was excessive when compared with precedents and that he had been placed in double jeopardy, which was in violation of Article 39. On September 27, 1950, all fifteen judges of the Supreme Court made the Grand Bench Decision to rule against the defendant and declared that a criminal proceeding in the District Court, High Court and Supreme Court is all one case and that there is no double jeopardy. In other words, if the prosecutor appeals against a judgement of not guilty or a guilty decision that they think does not impose a severe enough sentence, the defendant will not be placed in double jeopardy.

On October 10, 2003, the Supreme Court made a landmark decision in the area of double jeopardy. The case involved Article 235 of the Penal Code, which addresses “simple larceny”, and Article 2 of the Law for Prevention and Disposition of Robbery, Theft, etc., which addresses “habitual larceny”. The Court ruled that in the event that there are two trials for separate cases of simple larceny, it will not be considered double jeopardy, even if the prosecutor could have charged both of them as a single crime of habitual larceny. The defendant in this case had committed crimes of trespassing and simple larceny on 22 separate occasions. The defence counsel argued that the crimes were actually one offence of habitual larceny and that charging them as separate counts was double jeopardy. The Supreme Court ruled that it was within the prosecutor’s discretion as to whether to charge the defendant with one count of habitual larceny or to charge them with multiple counts of trespassing and simple larceny. In either case, it is not considered double jeopardy. [26] [27] [28]

The Netherlands

In the Netherlands, the state prosecution can appeal a not-guilty verdict at the bench. New evidence can be applied during a retrial at a district court. Thus one can be tried twice for the same alleged crime. If one is convicted at the district court, the defence can make an appeal on procedural grounds to the supreme court. The supreme court might admit this complaint, and the case will be reopened yet again, at another district court. Again, new evidence might be introduced by the prosecution.

On 9 April 2013 the Dutch senate voted 36 "yes" versus 35 "no" in favour of a new law that allows the prosecutor to re-try a person who was found not guilty in court. This new law is limited to crimes where someone died and new evidence must have been gathered. The new law also works retroactively.[ citation needed ]

Pakistan

Article 13 of the Constitution of Pakistan protects a person from being punished or prosecuted more than once for the same offence. Section 403 of The Code of Criminal Procedure contemplates of a situation where as person having once been tried by a Court of competent jurisdiction and acquitted by such court cannot be tried again for the same offence or for any other offence based on similar facts. The scope of section 403 is restricted to criminal proceedings and not to civil proceedings and departmental inquiries.

Serbia

This principle is incorporated into the Constitution of the Republic of Serbia and further elaborated in its Criminal Procedure Act. [29]

South Africa

The Bill of Rights in the Constitution of South Africa forbids a retrial when there has already been an acquittal or a conviction.

Every accused person has a right to a fair trial, which includes the right ... not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted ...

Constitution of the Republic of South Africa, 1996, s. 35(3)(m)

South Korea

Article 13 of the South Korean constitution provides that no citizen shall be placed in double jeopardy. [30]

United Kingdom

England and Wales

Double jeopardy has been permitted in England and Wales in certain (exceptional) circumstances since the Criminal Justice Act 2003.

Pre-2003

The doctrines of autrefois acquit and autrefois convict persisted as part of the common law from the time of the Norman conquest of England; they were regarded as essential elements for protection of the subject's liberty and respect for due process of law in that there should be finality of proceedings. [7] There were only three exceptions, all relatively recent, to the rules:

  • The prosecution has a right of appeal against acquittal in summary cases if the decision appears to be wrong in law or in excess of jurisdiction. [31]
  • A retrial is permissible if the interests of justice so require, following appeal against conviction by a defendant. [32]
  • A "tainted acquittal", where there has been an offence of interference with, or intimidation of, a juror or witness, can be challenged in the High Court. [33]

In Connelly v DPP [1964] AC 1254, the Law Lords ruled that a defendant could not be tried for any offence arising out of substantially the same set of facts relied upon in a previous charge of which he had been acquitted, unless there are "special circumstances" proven by the prosecution. There is little case law on the meaning of "special circumstances", but it has been suggested that the emergence of new evidence would suffice. [34]

A defendant who had been convicted of an offence could be given a second trial for an aggravated form of that offence if the facts constituting the aggravation were discovered after the first conviction. [35] By contrast, a person who had been acquitted of a lesser offence could not be tried for an aggravated form even if new evidence became available. [36]

Post-2003

Following the murder of Stephen Lawrence, the Macpherson Report recommended that the double jeopardy rule should be abrogated in murder cases, and that it should be possible to subject an acquitted murder suspect to a second trial if "fresh and viable" new evidence later came to light. The Law Commission later added its support to this in its report "Double Jeopardy and Prosecution Appeals" (2001). A parallel report into the criminal justice system by Lord Justice Auld, a past Senior Presiding Judge for England and Wales, had also commenced in 1999 and was published as the Auld Report six months after the Law Commission report. It opined that the Law Commission had been unduly cautious by limiting the scope to murder and that "the exceptions should [...] extend to other grave offences punishable with life and/or long terms of imprisonment as Parliament might specify." [37] 1999 was also the year of a highly-publicised case in which a man, David Smith, was convicted of the murder of a prostitute after having been acquitted of the "almost identical" [38] murder of sex worker Sarah Crump 6 years previously. [39] [38] [40] Because of the double jeopardy laws that existed at the time, Smith could not be re-tried for Crump's murder, despite police inisting they were not looking for anybody else and that the case was closed and the BBC reporting that Smith had "beat" the earlier murder charge. [41] [42] [39] [38]

Both Jack Straw (then Home Secretary) and William Hague (then Leader of the Opposition) favoured the measures suggested by the Auld Report. [43] These recommendations were implemented—not uncontroversially at the time—within the Criminal Justice Act 2003, [44] [45] and this provision came into force in April 2005. [46] It opened certain serious crimes (including murder, manslaughter, kidnapping, rape, armed robbery, and serious drug crimes) to a retrial, regardless of when committed, with two conditions: the retrial must be approved by the Director of Public Prosecutions, and the Court of Appeal must agree to quash the original acquittal due to "new and compelling evidence". [47] Then Director of Public Prosecutions, Ken Macdonald QC, said that he expected no more than a handful of cases to be brought in a year. [48]

Pressure by Ann Ming, the mother of 1989 murder victim Julie Hogg—whose killer, Billy Dunlop, was initially acquitted and subsequently confessed—also contributed to the demand for legal change. [48] On 11 September 2006, Dunlop became the first person to be convicted of murder following a prior acquittal for the same crime, in his case his 1991 acquittal of Hogg's murder. Some years later he had confessed to the crime, and was convicted of perjury, but was unable to be retried for the killing itself. 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, which was granted. [48] [49] [50] Dunlop pleaded guilty to murder and was sentenced to life imprisonment, with a recommendation he serve no less than 17 years. [51]

On 13 December 2010, Mark Weston became the first person to be retried and found guilty of murder by a jury (Dunlop having confessed). In 1996 Weston had been acquitted of the murder of Vikki Thompson at Ascott-under-Wychwood on 12 August 1995, but following the discovery in 2009 of compelling new evidence (Thompson's blood on Weston's boots) he was arrested and tried for a second time. He was sentenced to life imprisonment, to serve a minimum of 13 years. [52]

In December 2018, convicted paedophile Russell Bishop was also retried and found guilty by a jury for the Babes in the Wood murders of two 9-year-old girls, Nicola Fellows and Karen Hadaway, on 9 October 1986. At the original trial in 1987, a key piece of the prosecution's case rested on the recovery of a discarded blue sweatshirt. Under questioning, Bishop denied that the sweatshirt belonged to him, but his girlfriend, Jennifer Johnson, alleged the clothing was Bishop's, before she changed her story in the trial, telling the jury she had never seen the top before. [53] Attributed to a series of blunders in the prosecution's case, Bishop was acquitted by the jury after two hours of deliberations. [53] Three years later, Bishop was found guilty of the abduction, molestation, and attempted murder of a 7-year-old girl in February 1990. [54] In 2014, re-examined by modern forensics, the sweatshirt contained traces of Bishop's DNA, and also had fibres on it from both of the girls' clothing. [54] Tapings taken from Karen Hadaway's arm also yielded traces of Bishop's DNA. [54] At the 2018 trial, a jury of seven men and five women returned a guilty verdict after two-and-a-half hours of deliberation. [53] [54]

On 14 November 2019, Michael Weir became the first person to be twice found guilty of a murder. He was originally convicted of the murder of Leonard Harris and Rose Seferian in 1999, but the conviction was quashed in 2000 by the Court of Appeal on a technicality. In 2018, new DNA evidence had been obtained and palm prints from both murder scenes were matched to Weir. Twenty years after the original conviction, Weir was convicted of the murders for a second time. [3]

Scotland

The double jeopardy rule no longer applies absolutely in Scotland since the Double Jeopardy (Scotland) Act 2011 came into force on 28 November 2011. The Act introduced three broad exceptions to the rule: where the acquittal had been tainted by an attempt to pervert the course of justice; where the accused admitted their guilt after acquittal; and where there was new evidence. [55]

Northern Ireland

In Northern Ireland, the Criminal Justice Act 2003, effective 18 April 2005, [56] makes certain "qualifying offence" (including murder, rape, kidnapping, specified sexual acts with young children, specified drug offences, defined acts of terrorism, as well as in certain cases attempts or conspiracies to commit the foregoing) [57] subject to retrial after acquittal (including acquittals obtained before passage of the Act) if there is a finding by the Court of Appeal that there is "new and compelling evidence." [58]

United States

The ancient protection of the Common Law against double jeopardy is maintained in its full rigour in the United States. The Fifth Amendment to the United States Constitution provides:

... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; ... [59]

Conversely, double jeopardy comes with a key exception. Under the multiple sovereignties doctrine, multiple sovereigns can indict a defendant for the same crime. The federal and state governments can have overlapping criminal laws, so a criminal offender may be convicted in individual states and federal courts for exactly the same crime or for different crimes arising out of the same facts. [60] However, in 2016, the Supreme Court held that Puerto Rico is not a separate sovereign for purposes of the Double Jeopardy Clause. [61] The dual sovereignty doctrine has been the subject of substantial scholarly criticism. [62]

As described by the U.S. Supreme Court in its unanimous decision concerning Ball v. United States 163 U.S. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial." [63] The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment. [64] Jeopardy "attaches" when the jury is impanelled, the first witness is sworn, or a plea is accepted. [65]

Prosecution after acquittal

With two exceptions, the government is not permitted to appeal or retry the defendant once jeopardy attaches to a trial unless the case does not conclude. Conditions which constitute "conclusion" of a case include

  • After the entry of an acquittal, whether:
    • a directed verdict before the case is submitted to the jury, [66] [67]
    • a directed verdict after a deadlocked jury, [68]
    • an appellate reversal for sufficiency (except by direct appeal to a higher appellate court), [69] or
    • an "implied acquittal" via conviction of a lesser included offence. [70]
  • re-litigating against the same defence a fact necessarily found by the jury in a prior acquittal, [71] even if the jury hung on other counts. [72] In such a situation, the government is barred by collateral estoppel.

In these cases, the trial is concluded and the prosecution is precluded from appealing or retrying the defendant over the offence to which they were acquitted.

This principle does not prevent the government from appealing a pre-trial motion to dismiss [73] or other non-merits dismissal, [74] or a directed verdict after a jury conviction, [75] nor does it prevent the trial judge from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has so provided by rule or statute. [76] Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency, [77] including habeas corpus , [78] or "thirteenth juror" appellate reversals notwithstanding sufficiency [79] on the principle that jeopardy has not "terminated".

The "dual sovereignty" doctrine allows a federal prosecution of an offence to proceed regardless of a previous state prosecution for that same offence [80] and vice versa [81] because "an act denounced as a crime by both national and state sovereignties is an offence against the peace and dignity of both and may be punished by each". [82] The doctrine is solidly entrenched in the law, but there has been a traditional reluctance in the federal executive branch to gratuitously wield the power it grants, due to public opinion being generally hostile to such action. [83]

Exceptions

The first exception to a ban on retrying a defendant is if, in a trial, the defendant bribed the judge into acquitting him or her, since the defendant was not in jeopardy. [84]

The other exception to a ban on retrying a defendant is that a member of the armed forces can be retried by court-martial in a military court, even if he or she has been previously acquitted by a civilian court. [85]

An individual can be prosecuted by both the United States and an Indian tribe for the same acts that constituted crimes in both jurisdictions; it was established by the Supreme Court in United States v. Lara that as the two are separate sovereigns, prosecuting a crime under both tribal and federal law does not attach double jeopardy. [86]

Multiple punishment, including prosecution after conviction

In Blockburger v. United States (1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not. [87] Blockburger is the default rule, unless the governing statute legislatively intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates, [88] [89] as can conspiracy. [90]

The Blockburger test, originally developed in the multiple punishments context, is also the test for prosecution after conviction. [91] In Grady v. Corbin (1990), the Court held that a double jeopardy violation could lie even where the Blockburger test was not satisfied, [92] but Grady was later distinguished in United States v. Felix (1992), when the court reverted to the Blockburger test without completely dismissing the Grady interpretation. The court eventually overruled Grady in United States v. Dixon (1993). [93]

Prosecution after mistrial

The rule for mistrials depends upon who sought the mistrial. If the defendant moves for a mistrial, there is no bar to retrial, unless the prosecutor acted in "bad faith", i.e. goaded the defendant into moving for a mistrial because the government specifically wanted a mistrial. [94] If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial. [95] The same standard governs mistrials granted sua sponte.

Retrials are not common, due to the legal expenses to the government. However, in the mid-1980s Georgia antique dealer James Arthur Williams was tried a record four times for the murder of Danny Hansford and (after three mistrials) was finally acquitted on the grounds of self-defence. [96] The case is recounted in the book Midnight in the Garden of Good and Evil, [97] which was adapted into a film directed by Clint Eastwood (the movie combines the four trials into one). [98]

See also

Footnotes

  1. For example, in Western Australia: "It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment or prosecution notice on which he might have been convicted of the offence with which he is charged, or has already been convicted or acquitted of an offence of which he might be convicted upon the indictment or prosecution notice on which he is charged."— [6]
  2. The terminology apparently derived from Law French, and is a mixture of French autrefois 'at another time [in the past]' and borrowed-English loanwords. [8]
  1. Rudstein, David S. (2005). "A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy". William & Mary Bill of Rights Journal. 14 (1).
  2. Buckland, W. W. (1963). A Text-book of Roman Law from Augustus to Justinian (3 ed.). Cambridge: Cambridge UP. pp.  695–6.
  3. 1 2 "Michael Weir guilty of 1998 'double jeopardy' murders". BBC News. 14 November 2019. Retrieved 14 November 2019.
  4. "Canadian Charter of Rights and Freedoms". Archived from the original on 10 January 2016., s 11 (h), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
  5. "U.S. Constitution". 30 October 2015. Amend. V.
  6. "Criminal Code Act Compilation Act 1913, Appendix B, Sch "The Criminal Code" s 17(1)".
  7. 1 2 Benét, Stephen Vincent (1864). A Treatise on Military Law and the Practice of Courts-martial. p.  97.
  8. Holdsworth, Sir William (1942). A History of English Law. Vol. 3 (5 ed.). London: Methuen and Sweet & Maxwell. pp. 611, 614.
  9. "Chart of signatures and ratifications of Treaty 005 (Convention for the Protection of Human Rights and Fundamental Freedoms)". Council of Europe. 3 November 2020. Archived from the original on 3 November 2020. Retrieved 3 November 2020.
  10. 1 2 "European Convention on Human Rights, as amended by Protocols Nos. 11 and 14, supplemented by Protocols Nos. 1, 4, 6, 7, 12 and 13" (PDF). Council of Europe. Retrieved 31 March 2018.
  11. "Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms". Council of Europe.
  12. 1 2 "Coalition Government to introduce double jeopardy reforms". Victoria's double jeopardy laws to be reworked. Archived from the original on 22 March 2012. Retrieved 4 February 2012.
  13. Duffy, Conor (7 September 2006). "NSW seeks to scrap double jeopardy principle". The World Today.
  14. "Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008" . Retrieved 16 October 2011.
  15. "Attorney General Christian Porter welcomes double jeopardy law reform". 8 September 2011. Retrieved 16 October 2011.
  16. "WA the next state to axe double jeopardy". 8 September 2011. Retrieved 16 October 2011.
  17. "Double Jeopardy Law Reform". Tasmanian Government Media Releases. Retrieved 16 October 2011.[ dead link ]
  18. "Criminal Procedure Amendment (Double Jeopardy and Other Matters) Bill 2011".
  19. "Double Jeopardy Changes Insufficient". Brisbane Times. 20 April 2007.
  20. "Code of penal procedure, article 6" (in French). Legifrance. Retrieved 2 January 2012.{{cite journal}}: Cite journal requires |journal= (help)
  21. "Code of penal procedure, articles 622–626" (in French). Legifrance. Retrieved 2 January 2012.{{cite journal}}: Cite journal requires |journal= (help)
  22. "Grundgesetz für die Bundesrepublik Deutschland" [Basic Law for the Federal Republic of Germany](PDF) (in German).{{cite journal}}: Cite journal requires |journal= (help)
  23. Currie, David. "Lochner Abroad: Substantive Due Process and Equal Protection in the Federal Republic of Germany" (PDF). German Law Journal. 9 (12). Archived from the original (PDF) on 25 April 2012.
  24. "Article 20, Section 2". Constitution of India. Archived from the original on 24 November 2010. No person shall be prosecuted and punished for the same offence more than once.
  25. Sharma; Sharma B.k. (2007). Introduction to the Constitution of India. PHI Learning Pvt. Ltd. pp.  94. ISBN   978-81-203-3246-1.
  26. 刑事裁判を考える:高野隆@ブログ:二重の危険. Blog.livedoor.jp (14 May 2007). Retrieved on 2 January 2012.
  27. Sasakura, Kana (6 December 2012). "Double Jeopardy and the Japanese Law". The Wrongful Convictions Blog. Retrieved 29 January 2022.
  28. Cleary, William (June 2005). "The Law of Double Jeopardy in Contemporary Japan". Iwate University Repository. Artes liberales: Bulletin of the Faculty of Humanities and Social Sciences, Iwate University. Retrieved 29 January 2022.
  29. Article 6. of the Criminal Procedure Act – ZAKONIK O KRIVIČNOM POSTUPKU ("Sl. list SRJ", br. 70/2001 i 68/2002 i "Sl. glasnik RS", br. 58/2004, 85/2005, 115/2005, 85/2005 – dr. zakon, 49/2007, 20/2009 – dr. zakon i 72/2009)
  30. CHAPTER II Rights and Duties of the Citizens, Constitution of the republic of Korea.
  31. Magistrates' Courts Act 1980 ss.28, 111; Supreme Court Act 1981 s.28
  32. Criminal Appeal Act 1968 s.7
  33. Criminal Procedure and Investigations Act 1996 s.54
  34. Attorney-General for Gibraltar v Leoni, Court of Appeal, 1999 (unreported); see Law Com CP No 156, para 2.24
  35. R v Thomas [1950] 1 KB 26
  36. R v Beedie [1998] QB 356, Dingwall, 2000
  37. "A Review of the Criminal Courts of England and Wales by The Right Honourable Lord Justice Auld". September 2001. Archived from the original on 7 June 2009. Retrieved 5 January 2012.
  38. 1 2 3 "Prostitute murderer gets life". BBC News. 8 December 1999. Retrieved 20 April 2022.
  39. 1 2 "Killer beat earlier murder charge". BBC News. 8 December 1999. Retrieved 20 April 2022.
  40. "Police probe killer sadist Life for lorry driver who was cleared of carbon-copy murder of prostitute in 1993". HeraldScotland. 9 December 1999. Retrieved 20 April 2022.
  41. Hope, Christopher (28 November 2008). "David Smith's size 14 feet could link him to three more murders". The Telegraph. Retrieved 20 April 2022.
  42. Widdup, Ellen (13 April 2012). "'Bigfoot' print may link killer to vice girl deaths". Evening Standard. Retrieved 20 April 2022.
  43. "Straw moves to scrap Magna Carta double jeopardy law" . The Telegraph. 5 November 2000. Archived from the original on 12 January 2022. Retrieved 13 October 2014.
  44. Broadbridge, Sally (2 December 2002). "Research paper 02/74: The Criminal Justice Bill: Double jeopardy and prosecution appeals" (PDF). UK parliament. Archived from the original (PDF) on 20 November 2006. Retrieved 5 January 2012.
  45. "Criminal Justice Act 2003 (c. 44) Part 10: Retrial for serious offences". Her Majesty's Stationery Office. 20 November 2003. Retrieved 5 June 2014.
  46. Double jeopardy law ushered out, BBC News. 3 April 2005
  47. Retrial of Serious Offences. The CPS. Retrieved on 2 January 2012.
  48. 1 2 3 Murder conviction is legal first, BBC News. 11 September 2006
  49. Man faces double jeopardy retrial, BBC News. 10 November 2005
  50. The law of 'double jeopardy', BBC News. 11 September 2006
  51. Double jeopardy man is given life, BBC News. 6 October 2006
  52. "'Double jeopardy' man guilty of Vikki Thompson murder". BBC News Oxford. 13 December 2010. Retrieved 13 December 2010.
  53. 1 2 3 Evans, Martin; Sawer, Patrick (10 December 2018). "Babes in the Wood murders: after the police blunders and killer's deceit, how justice caught up with Russell Bishop, 32 years on" . The Telegraph. ISSN   0307-1235. Archived from the original on 12 January 2022. Retrieved 10 December 2018.
  54. 1 2 3 4 Quinn, Ben (10 December 2018). "Man found guilty of 1986 Brighton 'babes in the wood' murders". The Guardian. ISSN   0261-3077 . Retrieved 10 December 2018.
  55. "Double Jeopardy (Scotland) Act 2011" legislation.gov.uk retrieved 6 January 2012.
  56. "Commencement of Provisions – Criminal Justice Act of 2003," Archived 28 September 2011 at the Wayback Machine Northern Ireland Office.
  57. Schedule 5 Part 2 Archived 2 July 2010 at the Wayback Machine of the Criminal Justice Act of 2003.
  58. "Retrial for serious offences," Archived 23 January 2010 at the Wayback Machine Part 10 of Criminal Justice Act of 2003.
  59. Harper, Timothy (2 October 2007). The Complete Idiot's Guide to the U.S. Constitution. Penguin Group. p. 109. ISBN   978-1-59257-627-2. However, the Fifth Amendment contains several other important provisions for protecting your rights. It is the source of the double jeopardy doctrine, which prevents authorities from trying a person twice for the same crime ...
  60. Gamble v. United States , No. 17-646 , 587 U.S. ___(2019).
  61. Puerto Rico v. Sanchez Valle , No. 15-108 , 579 U.S. ___(2016).
  62. Adler, Adam J. "Dual Sovereignty, Due Process, and Duplicative Punishment: A New Solution to an Old Problem". Yale Law Journal. N.p., Nov. 2014. Web. 15 November 2015.
  63. United States v. Ball , 163662 (1896).
  64. North Carolina v. Pearce , 395 U.S. 711 (1969).
  65. Crist v. Bretz , 437 U.S. 28 (1978).
  66. Fong Foo v. United States , 369 U.S. 141 (1962).
  67. Sanabria v. United States , 437 U.S. 54 (1978).
  68. United States v. Martin Linen Supply Co. , 430 U.S. 564 (1977).
  69. Burks v. United States , 437 U.S. 1 (1978).
  70. Green v. United States , 355 U.S. 184 (1957).
  71. Ashe v. Swenson , 397 U.S. 436 (1970).
  72. Yeager v. United States , 557 U.S. 110 (2009).
  73. Serfass v. United States , 420 U.S. 377 (1973).
  74. United States v. Scott, 437 U.S. 82 (1978).
  75. Wilson v. United States , 420 U.S. 332 (1975).
  76. Smith v. Massachusetts , 543 U.S. 462 (2005).
  77. Ball v. United States , 163 U.S. 662 (1896).
  78. United States v. Tateo , 377 U.S. 463 (1964).
  79. Tibbs v. Florida , 457 U.S. 31 (1982).
  80. Abbate v. United States , 359 U.S. 187 (1959).
  81. Bartkus v. Illinois , 359 U.S. 121 (1959).
  82. United States v. Lanza , 260 U.S. 377 (1922).
  83. Wayne R. LaFave, et al., Criminal Procedure § 25.5(a) (4th ed. 2004).
  84. Aleman v. Judges of the Circuit Court of Cook County , 138F.3d302 (7th Cir.1998).
  85. SBM Blog (14 November 2011). "Double Jeopardy and the Military: A Sensational Case in Point - SBM Blog". Sbmblog.typepad.com. Retrieved 14 May 2012.
  86. "United States v. Lara - Brief (Merits)". www.justice.gov. 21 October 2014. Retrieved 5 March 2020.
  87. Blockburger v. United States , 284 U.S. 299 (1932) See, e.g., Brown v. Ohio , 432 U.S. 161 (1977).
  88. Garrett v. United States , 471 U.S. 773 (1985).
  89. Rutledge v. United States, 517 U.S. 292 (1996).
  90. United States v. Felix , 503 U.S. 378 (1992).
  91. Missouri v. Hunter , 459 U.S. 359 (1983).
  92. Grady v. Corbin , 495 U.S. 508 (1990).
  93. United States v. Dixon , 509 U.S. 688 (1993).
  94. Oregon v. Kennedy , 456 U.S. 667 (1982).
  95. Arizona v. Washington , 434 U.S. 497 (1978).
  96. "James Williams - National Registry of Exonerations". www.law.umich.edu. Retrieved 3 January 2020.
  97. Domet, Sarah (13 September 2019). "25 Years After Midnight". Savannah Magazine. Retrieved 3 January 2020.
  98. Ebert, Roger. "Midnight In The Garden Of Good And Evil movie review (1997) | Roger Ebert". www.rogerebert.com. Retrieved 3 January 2020.

Further reading

Australia

In favour of current rule prohibiting retrial after acquittal
Opposing the rule that prohibits retrial after acquittal

United Kingdom

Research and Notes produced for the UK Parliament, summarising the history of legal change, views and responses, and analyses:

United States

Other countries

Related Research Articles

In common law systems, the peremptory pleas are defensive pleas that set out special reasons for which a trial cannot proceed; they serve to bar the case entirely. Pleas in bar may be used in civil or criminal cases; they address the substantial merits of the case.

In legal terms, a plea is simply an answer to a claim made by someone in a criminal case under common law using the adversarial system. Colloquially, a plea has come to mean the assertion by a defendant at arraignment, or otherwise in response to a criminal charge, whether that person pleaded or pled guilty, not guilty, nolo contendere, no case to answer, or Alford plea.

Acquittal The legal result of a verdict of not guilty

In common law jurisdictions, an acquittal certifies that the accused is free from the charge of an offense, as far as the criminal law is concerned. The finality of an acquittal is dependent on the jurisdiction. In some countries, such as the United States, an acquittal operates to bar the retrial of the accused for the same offense, even if new evidence surfaces that further implicates the accused. The effect of an acquittal on criminal proceedings is the same whether it results from a jury verdict or results from the operation of some other rule that discharges the accused. In other countries, the prosecuting authority may appeal an acquittal similar to how a defendant may appeal a conviction.

A hung jury, also called a deadlocked jury, is a judicial jury that cannot agree upon a verdict after extended deliberation and is unable to reach the required unanimity or supermajority. Hung jury usually results in the case being tried again.

Prejudice is a legal term with different meanings when used in criminal, civil, or common law. In legal context, "prejudice" differs from the more common use of the word and thus has specific technical meanings.

Ball v. United States, 163 U.S. 662 (1896), is one of the earliest United States Supreme Court cases interpreting the Double Jeopardy Clause.

A new trial or retrial is a recurrence of a court case. A new trial may potentially be ordered for some or all of the matters from the original trial. Depending upon the rules of the jurisdiction and the decision of the court that ordered the new trial, a new trial may occur if:

Criminal Justice Act 2003 United Kingdom legislation

The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide-ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland.

Actual innocence is a special standard of review in legal cases to prove that a charged defendant did not commit the crimes that they were accused of, which is often applied by appellate courts to prevent a miscarriage of justice.

No case for the defendant to answer is a term in the criminal law of some Commonwealth states, whereby a defendant seeks acquittal without having to present a defence, because of the insufficiency of the prosecution's case. The motion is infrequently used in civil cases where the defendant asserts that the plaintiff's case is insufficient to prove liability.

Heath v. Alabama, 474 U.S. 82 (1985), is a case in which the United States Supreme Court ruled that, because of the doctrine of "dual sovereignty", the double jeopardy clause of the Fifth Amendment to the Constitution does not prohibit one state from prosecuting and punishing somebody for an act of which they had already been convicted of and sentenced for in another state.

Jury nullification in the United States has its origins in colonial America under British law. In the United States, jury nullification occurs when a jury in a criminal case reaches a verdict contrary to the weight of evidence, sometimes because of a disagreement with the relevant law. The American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment's Double Jeopardy Clause, which prohibits the appeal of an acquittal, and the fact that jurors cannot be punished for the verdict they return.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..." The four essential protections included are prohibitions against, for the same offense:

<i>Connelly v DPP</i> British legal case

Connelly v DPP [1964] AC 1254 was a landmark appeal whereby the highest court set out the way in which peripheral double jeopardy trials can take place in British law. It was ruled such proceedings should only be stayed where a retrial would be an abuse of process that violated objective standards of fairness and hampered the rights of the defendant. Connelly had been tried for murder, while in the commission of a robbery, and was found guilty despite a defence revolving around a lack of intent for murder. Connelly then appealed to the Court of Appeal, where his conviction was overturned and he was acquitted of murder for lack of proveable intent to kill or cause serious injury at the moment or leading up to the killing and the indictment reduced to robbery. Connelly pleaded autrefois acquit, or double jeopardy, but the argument was rejected and he was able to be convicted of robbery. It is ruled that offences of murder and robbery differ enough in fact and in law" that charges for both offences must together fall or stand. The moral sphere in which law founded demands in that the public interest that robbers do not go without a sentence by way of justice.

United States v. Dinitz, 424 U.S. 600 (1976), was a case in which the Supreme Court of the United States determined that the U.S. Const., Amend. V protection against double jeopardy did not prevent a retrial of a defendant, who had previously requested a mistrial.

Ludwig v. Massachusetts, 427 U.S. 618 (1976), was a case in which the Supreme Court of the United States held that the Massachusetts two-tier court system did not deprive Ludwig of his U.S. Const., Amend. XIV right to a jury trial and did not violate the double jeopardy clause of the U.S. Const., Amend. V.

United States constitutional criminal procedure United States constitutional criminal procedure

The United States Constitution contains several provisions regarding the law of criminal procedure.

Blueford v. Arkansas, 566 U.S. 599 (2012), was a decision of the Supreme Court of the United States that clarified the limits of the Double Jeopardy Clause. The Supreme Court held that the Double Jeopardy Clause does not bar retrial of counts that a jury had previously unanimously voted to acquit on, when a mistrial is declared after the jury deadlocked on a lesser included offense.

Burks v. United States, 437 U.S. 1 (1978), is a United States Supreme Court decision that clarified both the scope of the protection against double jeopardy provided by the Fifth Amendment to the United States Constitution and the limits of an appellate court's discretion to fashion a remedy under section 2106 of Title 28 to the United States Code. It established the constitutional rule that where an appellate court reverses a criminal conviction on the ground that the prosecution failed to present sufficient evidence to prove the defendant's guilt beyond a reasonable doubt, the Double Jeopardy Clause shields the defendant from a second prosecution for the same offense. Notwithstanding the power that appellate courts have under section 2106 to "remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances," a court that reverses a conviction for insufficiency of the evidence may not allow the lower court a choice on remand between acquitting the defendant and ordering a new trial. The "only 'just' remedy" in this situation, the Court held, is to order an acquittal.

Oregon v. Kennedy, 456 U.S. 667 (1982), was a United States Supreme Court decision dealing with the appropriate test for determining whether a criminal defendant has been "goaded" by the prosecution's bad actions into motioning for a mistrial. This matters because the answer determines whether a defendant can be retried. Ordinarily, a defendant who requests a mistrial can be forced to stand trial a second time, see United States v. Dinitz. However, if the prosecution's conduct was "intended to provoke the defendant into moving for a mistrial," double jeopardy protects the defendant from retrial. The Court emphasized that only prosecutorial actions where the intent is to provoke a mistrial — and not mere "harassment" or "overreaching" — trigger the double jeopardy protection.