Double jeopardy
Double jeopardy (also called "
autrefois acquit" meaning "already acquitted") is a
procedural defense (and, in many countries such as the
United States,
Canada,
Australia and
India, a
constitutional right) that forbids a
defendant from being
tried a second time for a crime, after having already been tried 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.
Double jeopardy was abolished in
England and
Wales for serious offences in
2005.[
1]
Australia
Australian double jeopardy jurisprudence is very similar to other common law countries. While there is no constitutional protection against re-trials following acquittal, there have been few examples of statutory exceptions.
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 aquittal 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 prevent 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 by the High Court has led to widespread calls for reform of the law along the lines of the UK legislation.
Canada
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.
Europe
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.
France
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.
United Kingdom
The
Parliament of the United Kingdom passed legislation in the
Criminal Justice Act 2003 introduced by then
Home Secretary David Blunkett to abolish the previously strict form of prohibition of double jeopardy in England. Retrials are now allowed if there is 'new and compelling evidence'. All cases must be approved by the
Director of Public Prosecutions and the
Court Of Appeal must agree to quash the original acquittal.[
2]
India
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.
The phrase "double jeopardy" stems from the
Fifth Amendment to the
U.S. Constitution: "nor shall any person be subject for the same offence 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 applies 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.
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.
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 which 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.,
183 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 who beat up black motorist
Rodney King in
1991 were acquitted by a
county court of the accusation of
assault; 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 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.
*Dutch and German law:
Ne bis in idem*
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