Double jeopardy is a
procedural defenseIn jurisprudence, procedural defenses are a form of defense, via which a party argues that they should not be held liable for a legal charge or claim brought against them. In common law jurisdictions the term has applications in both criminal law and civil law...
(and, in many countries such as the
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
,
CanadaCanada is a country occupying most of northern North America, extending from the Atlantic Ocean in the east to the Pacific Ocean in the west and northward into the Arctic Ocean...
,
MexicoThe United Mexican States , commonly known as Mexico , is a federal constitutional republic in North America. It is bordered on the north by the United States; on the south and west by the Pacific Ocean; on the southeast by Guatemala, Belize, and the Caribbean Sea; and on the east by the Gulf of...
,
IndiaIndia, officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the south, the Arabian Sea on the west, and the Bay of Bengal...
and
PakistanPakistan , officially the Islamic Republic of Pakistan, is a country located at the crossroads of South Asia, the Middle East, and Central Asia...
, a
constitutionA constitution is a set of rules for government—often codified as a written document—that establishes principles of an autonomous political entity. In the case of countries, this term refers specifically to a national constitution defining the fundamental political principles, and establishing the...
al right) that forbids a
defendantA defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute....
from being
triedIn law, a trial is when parties to a dispute come together to present information in a formal setting, usually a court, before a judge, jury, or other designated finder of fact, in order to achieve a resolution to their dispute....
twice for the same crime on the same set of facts. At
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
a defendant may plead
autrefois acquit or
autrefois convict (a
peremptory pleaIn the common law, the peremptory pleas , are pleas that set out special reasons for which a trial cannot go ahead. They are the plea of autrefois convict, the plea of autrefois acquit, and the plea of pardon....
), meaning the defendant has been acquitted or convicted of the same offense. If this issue is raised, evidence will be placed before the court, which will normally rule as a preliminary matter whether the plea is substantiated, and if it so finds, the projected trial will be prevented from proceeding.
Australia
In contrast to other common law nations, Australian double jeopardy law has been held to extend to the prevention of prosecution for
perjuryPerjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the matter lied about would affect the outcome of the case...
following a previous acquittal where a finding of perjury would controvert the previous acquittal. This was confirmed in the case of
R v CarrollR v Carroll 213 CLR 635; [2002] HCA 55 is a decision of the High Court of Australia which unanimously upheld a Queensland appellate court’s decision to stay an indictment for perjury as the indictment was found to controvert the respondent’s earlier acquittal for murder...
, where the police found new evidence convincingly disproving Caroll's sworn
alibiAlibi is a American crime film written by Elaine Sterne Carrington, J.C. Nugent, C. Gardner Sullivan, Roland West and John Griffith Wray from the stage play, Nightstick, by Carrington, Nugent and Wray. The film was directed by Roland West...
two decades after he had been acquitted of murder charges in the death of
IpswichIpswich is a city situated on the Bremer River in South East Queensland, Australia. It is located approximately 40 kilometres south-west of the state capital, Brisbane.-History:...
child Deidre Kennedy, and successfully prosecuted him for perjury. Public outcry following the overturning of his conviction (for perjury) by the
High CourtThe High Court of Australia is the highest court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
has led to widespread calls for reform of the law along the lines of the UK legislation.
In December 2006,
New South WalesNew South Wales is Australia's most populous state, located in the south-east of the country, north of Victoria, south of Queensland and east of South Australia...
Premier
Morris IemmaMorris Iemma , was an Australian politician and 40th Premier of New South Wales, succeeding Bob Carr after he resigned on 3 August 2005...
scrapped substantial parts of the double jeopardy law in that state. Retrials of serious cases with a minimum sentence of twenty years or more are now possible, even when the original trial preceded the 2006 reform.
South Australia currently is also in the process of reforming its laws which will see the principle of double jeopardy abolished for serious indictable offences.
On 18 October, 2007, Queensland modified its double jeopardy laws 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 and New South Wales, this law does not have a retrospective effect, making its introduction less than fully appreciated by those who, over the years, have been advocating reform.
Canada
The
Canadian Charter of Rights and FreedomsThe Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
includes provisions such as
section 11(h)Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by...
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 judgment 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.
For an appeal from an acquittal to be successful, the Supreme Court of Canada requires that the Crown show an error in law was made during the trial and that the error contributed to the verdict. It has been suggested that this test is unfairly beneficial to the prosecution. For instance,
Martin L FriedlandMartin Lawrence Friedland, CC, QC is a Canadian lawyer, academic and author.He received a B.Comm. , LL.B. , and honorary LL.D. from the University of Toronto, and a Ph.D. and LL.D from Cambridge University. He was called to the Ontario Bar in 1960...
, in his book
My Life in Crime and Other Academic Adventures, 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 one of many factors.
A notable example of this is the case of
David AhenakewDavid Ahenakew is a Canadian First Nations politician, and former National Chief of the Assembly of First Nations.Ahenakew was born at Sandy Lake Indian Reserve in Saskatchewan, Canada...
, who was tried a second time after being acquitted.
Europe
All members of the
Council of EuropeThe Council of Europe is the oldest international organisation working towards European integration, having been founded in 1949. It has a particular emphasis on legal standards, human rights, democratic development, the rule of law and cultural co-operation...
(which includes nearly all European countries, and every member of the
European UnionThe European Union is an economic and political union of 27 Member States, located primarily in Europe. Committed to regional integration, the EU was established by the Treaty of Maastricht on 1 November 1993 upon the foundations of the pre-existing European Economic Community...
) have signed the
European Convention on Human RightsThe Convention for the Protection of Human Rights and Fundamental Freedoms , was adopted under the auspices of the Council of Europe in 1950 to protect human rights and fundamental freedoms in Europe...
, 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 acquittedIn the common law tradition, an acquittal formally certifies the innocence of the accused, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi...
or convicted in accordance with the law and penal procedure of that State.
Member states may, however, implement legislation which allows reopening of a case in the event that new evidence is found or if there was a fundamental defect in the previous proceedings.
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.
This specific optional protocol has been ratified by all EU states except five (namely
BelgiumThe Kingdom of Belgium is a country in northwest Europe. It is a founding member of the European Union and hosts its headquarters, as well as those of other major international organizations, including NATO...
,
GermanyGermany , officially the Federal Republic of Germany , is a country in Central Europe. It is bordered to the north by the North Sea, Denmark, and the Baltic Sea; to the east by Poland and the Czech Republic; to the south by Austria and Switzerland; and to the west by France, Luxembourg, Belgium,...
, The Netherlands,
SpainSpain , officially the Kingdom of Spain , is a country located in southwestern Europe on the Iberian Peninsula.
[The Spanish constitution does not establish any official denomination of the country, even though España , Estado español and Nación española are used interchangeably...]
and the
United KingdomThe United Kingdom of Great Britain and Northern Ireland is a sovereign state located off the northwestern coast of continental Europe. It is an island country, spanning an archipelago including Great Britain, the northeastern part of Ireland, and many small islands...
). Those member 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 on Human Rights – note the word
finally in the above quote.
United Kingdom
The doctrines of
autrefois acquit and
autrefois convict persisted as part of the
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
from the time of the Norman conquest; they were regarded as essential elements of protection of the liberty of the subject and respect for
due processDue process alternatively due process of law or the process that is due, is the principle that the government must respect all of the legal rights that are owed to a person according to the law...
of law in that there should be finality of proceedings. 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.
- A retrial is permissible if the interests of justice so require, following appeal against conviction by a defendant.
- 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.
The rule in
Connelly v DPPConnelly v DPP [1964] was a landmark trial in the United Kingdom where the House of Lords passed a ruling regarding double jeopardy in British law. It was ruled that criminal proceedings could be stayed if an "abuse of process" violated the "standards of fairness" and hampered the rights of the...
([1964] AC 1254) also limits the operation of the autrefois doctrine;
it was said there that where the facts relied upon in a prosecution are substantially the same as those in a previous trial, the defendant cannot be tried on a subsequent occasion for any offence
arising out of those facts unless there are "special circumstances" proven by the prosecution (such as, for example, the "tainted trial" situation). There is little case law on the meaning of "special circumstances", but it has been suggested that the emergence of new evidence would suffice. Additionally, a defendant who has been convicted of an offence can be tried for an aggravated form of that offence if the facts constituting the aggravation have arisen after the first conviction. By contrast, a person who has been acquitted of a lesser offence may not be tried for an aggravated form even if the new evidence becomes available.
The prohibition of a second trial after an acquittal was clarified by the
Criminal Justice Act 2003The 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....
. Following the murder of
Stephen LawrenceThe murder of Stephen Lawrence is a notable murder case surrounding the killing of a black British teenager from South-East London named Stephen Lawrence who was stabbed to death while waiting for a bus on the evening of 22 April 1993....
, the MacPherson Report suggested that double jeopardy should be abrogated where "fresh and viable" new evidence came to light, and the
Law CommissionA Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...
recommended in 2001 that it should be possible to subject an acquitted murder suspect to a second trial. The
Parliament of the United KingdomThe Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom and British overseas territories. It alone has parliamentary sovereignty, conferring upon it ultimate power over all other political bodies in the UK and its territories...
implemented these recommendations by passing the
Criminal Justice Act 2003The 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....
, introduced by then
Home SecretaryThe Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
David BlunkettDavid Blunkett is a British Labour politician, who has been the Member of Parliament for Sheffield Brightside since 1987. Blind since birth and from a poor family in one of Sheffield's most deprived districts, he rose to become Education Secretary in Tony Blair's first Cabinet from 1997 to 2001,...
. Under the 2003 Act, retrials are now allowed if there is "new" and "compelling" evidence for crimes, including
murderMurder, as defined in common law countries, is the unlawful killing of another human being with intent , and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, but also
manslaughterManslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder.The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind...
,
kidnappingIn criminal law, kidnapping is the taking away or asportation of a person against the person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
,
rapeRape, also referred to as sexual assault, is an assault by a person involving sexual intercourse with or without sexual penetration of another person without that person's consent....
, armed robbery, and serious
drug crimesDrug trade and terms that redirect here can mean:* Illegal drug trade, for illegal supply of controlled drugs* Pharmaceutical industry, for production of drugs for licensed medical uses* Alcoholic beverage industry, for production of alcoholic drinks...
. All cases must be approved by the
Director of Public ProsecutionsDirector of public prosecutions is the officer charged with the prosecution of criminal offences in several criminal jurisdictions around the world.-Australia:...
, and the
Court Of AppealThe Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it....
must agree to quash the original acquittal.
The double jeopardy provisions of the 2003 Act came into force in April 2005. 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
BillinghamBillingham is a civil parish and town in the Borough of Stockton on Tees in North East England with a population of 35,765 . It was founded circa 650 by a group of Saxons known as Billa's people, which is where the name Billingham is thought to have originated...
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.
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.
The law change only applies to England and Wales. In
ScotlandScotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
and
Northern IrelandNorthern Ireland is a part of the United Kingdom of Great Britain and Northern Ireland and it is situated in the north-east of the island of Ireland. It shares a border with the Republic of Ireland to the south and west...
the old double jeopardy rule still applies.
On 21 May 2009, Mario Celaire, who had previously been found not guilty of murdering his ex-girlfriend, was found guilty under double jeopardy laws of her manslaughter. He was sentenced to life imprisonment.
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
forgedForgery is the process of making, adapting, or imitating objects, statistics, or documents , with the intent to deceive. The similar crime of fraud is the crime of deceiving another, including through the use of objects obtained through forgery...
. 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 through a procedure known as
révision.
Germany
In
GermanyGermany , officially the Federal Republic of Germany , is a country in Central Europe. It is bordered to the north by the North Sea, Denmark, and the Baltic Sea; to the east by Poland and the Czech Republic; to the south by Austria and Switzerland; and to the west by France, Luxembourg, Belgium,...
, the
Basic Law for the Federal Republic of GermanyThe Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies, came into effect on 23 May 1949, as the constitution of West Germany....
provides protection against double jeopardy:
Based on pre-constitutional case law, the clause is constructed to also protect against double jeopardy in the case of an acquittal. However, it is not considered double jeopardy if the prosecution appeals an acquittal.
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 and/or much serious crimes.
The Criminal Procedural Code (Strafprozessordnung - StPO) provides some exceptions to the double jeopardy rule:
In the case of an order of summary punishment (Strafbefehl), which can be issued by the court without a trial for lesser misdemeanours (German: Vergehen), there is a further exception:
A felony (German: Verbrechen) is defined as a crime which has a usual minimum sanction of one year of imprisonment.
Netherlands
In the Netherlands, the state prosecution can appeal against a not-guilty verdict at the bench. New evidence can be brought to bear 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.
According to Dutch legal experts Crombag, Wagenaar, van Koppen, the Dutch system contravenes the provisions of the European Human Rights convention, in the imbalance between the power of the prosecution service and the defence.
India
In
IndiaIndia, officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country, and the most populous democracy in the world. Bounded by the Indian Ocean on the south, the Arabian Sea on the west, and the Bay of Bengal...
, protection against double jeopardy is a Fundamental Right guaranteed under Article 20 of the Constitution of India. Accordingly no person can be prosecuted and punished for the same offence more than once. Right to Freedom in the
Constitution of IndiaThe Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishing the structure, procedures, powers and duties, of the government and spells out the fundamental rights, directive principles and duties of citizens...
. The provision enshrines the principle that a person cannot be tried twice for the same offense by any equally competent court. Thus a person cannot be tried for an offense for which he has been tried and convicted. Double Jeopardy involves the concept of
Autrefois Acquit or
Autrefois Convict. Autrefois acquit means previously acquitted and autrefois convict means previously convicted. The Constitution of India under article 20(3) only provides for autrefois convict. Thus in India if a person is acquitted once he can be tried again. But if a person is prosecuted and punished then he can't be prosecuted again.
Japan
The Japanese Constitution states 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 practice, if someone is acquitted in lower district court, then the prosecutor can appeal to High court then to Supreme court. Only the acquittal in the Supreme court is the final acquittal which prevent any further retrial. This process could take decades.
United States
The
double jeopardy rule arises from the
Fifth Amendment to the United States ConstitutionThe Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
, the relevant clause of which reads: "[no person shall] be subject for the same offense to be twice put in jeopardy of life or limb".
This clause is intended to limit abuse by the
governmentA government is the body within a community, political entity or organization which has the authority to make and enforce rules, laws and regulations.....
in repeated prosecution for the same offense as a means of harassment or oppression. It is also in harmony with the
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
concept of
res judicataRes judicata or res iudicata is the Latin term for "a matter [already] judged", and may refer to two things: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal.; and the term is also used to refer to the legal doctrine...
which prevents courts from relitigating issues which have already been the subject of a final judgment.
More specifically, as stated in
Ashe v. SwensonAshe v. Swenson, 397 U.S. 436 , was a decision by the United States Supreme Court, which held that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." The Double Jeopardy Clause...
, 397 U.S. 436 (1970): "...when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit."
Res judicata is a term of general application. Underneath that conceptual umbrella is the concept of
collateral estoppelCollateral estoppel , known in modern terminology as issue preclusion, is a common law estoppel doctrine that prevents a person from relitigating an issue. One summary is that "once a court has decided an issue of fact or law necessary to its judgment, that decision .....
. As applied to double jeopardy, the court will use collateral
estoppel as its basis for forming an opinion.
There are three essential protections included in the double jeopardy principle, which are:
- being retried for the same crime after an acquittal
- retrial after a conviction
- being punished multiple times for the same offense
This rule is occasionally referred to as a
legal technicalityThe term legal technicality is a casual or colloquial phrase referring to a technical aspect of law. The phrase is not a term of art in the law; it has no exact meaning, nor does it have a legal definition...
because it allows
defendantA defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute....
s 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 a substantially similar charge.
Fong Foo v. United StatesFong Foo v. United States, 369 U.S. 141 , was a Supreme Court ruling that upheld the protection from Double Jeopardy by the Federal Government. While the protection from double jeopardy did not get incorporated to apply to the state governments until 1969 Fong Foo v. United States, 369 U.S. 141...
, 369 U.S. 141 (1962).
Although the Fifth Amendment initially applied only to the federal government, the
U.S. Supreme CourtThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
has ruled that the double jeopardy clause applies to the
statesA U.S. state is any one of 50 federated states of the United States of America that share sovereignty with the federal government . Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile...
as well through incorporation by the
Fourteenth AmendmentThe Fourteenth Amendment to the United States Constitution, along with the Thirteenth and Fifteenth Amendments, was adopted after the Civil War as one of the Reconstruction Amendments. It was adopted on July 9, 1868....
(
Benton v. MarylandBenton v. Maryland, , is a United States Supreme Court decision concerning double jeopardy. Benton ruled that the Double Jeopardy Clause of the Fifth Amendment applies to the states. In doing so, Benton expressly overruled Palko v. Connecticut, .-Background:John Dalmer Benton was tried on charges...
).
Jeopardy attaches in a
jury trialA jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
once the jury and alternates are impaneled and sworn in. In a
non-jury trialIn a non-jury trial the fact-finder is one or more professional judges rather than a jury of the defendant's 'peers'.In common law jurisdictions, all trials in equity, of petty criminal offenses and violations, and of small claims at law are non-jury trials, also known as bench trials, held before...
jeopardy attaches once the first evidence is put on which occurs when the first
witnessA witness is someone who has firsthand knowledge about a crime or dramatic event through their senses , and can help certify important considerations to the crime or event. A witness who has seen the event firsthand is known as an "eye-witness"...
is sworn.
Exceptions
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
dismissedInvoluntary dismissal is the termination of a court case despite the plaintiff's objection.In United States Federal courts, involuntary dismissal is governed by Federal Rules of Civil Procedure Rule 41....
because of insufficient evidence may constitute a final judgment for these purposes though many state and federal laws allow for substanially limited prosecutorial appeals from these orders. Also a retrial after a conviction has been reversed on appeal 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 scam, double jeopardy will not prohibit a new trial. In Harry Aleman
Harry "The Hook" Aleman is a Chicago Outfit enforcer and hitman.He remains a suspect in the unsolved murders of Sam Giancana and Richard Cain...
an appeals court ruled that a man who bribedBribery, a form of pecuniary corruption, is an act implying money or gift given that alters the behavior of the recipient. Bribery constitutes a crime and is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an...
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.
- 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 CourtThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
has also upheld laws allowing the government to appeal criminal sentences in limited circumstances (such as ). 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. FelixUnited States v. Felix, 503 U.S. 378 , was a decision by the United States Supreme Court, which held that “a[n]…offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes.” The Supreme Court rejected the Tenth Circuit's of Felix's conviction, finding that...
503 U.S. 378 (1992), the
Supreme CourtThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
ruled: 'a[n]...
offenseCrime is the breach of one or more rules or laws for which some governing authority, via mechanisms such as police power, may ultimately prescribe a conviction...
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 rightsCivil and political rights are a class of rights and freedoms that protect individuals from unwarranted government action and ensure one's ability to participate in the civil and political life of the state without discrimination or repression....
violation or kidnapping) related to the same act. For example, the
Los Angeles Police DepartmentThe Los Angeles Police Department is the police department of the city of Los Angeles, California. With nearly 9,900 officers and more than 3,000 civilian staff, covering an area of with a population of more than 3.8 million people, it is one of the largest law enforcement agencies in the United...
officers charged with
assaultAssault is a crime of violence against another person. In some jurisdictions, including Australia and New Zealand, assault refers to an act that causes another to apprehend immediate and personal violence, while in other jurisdictions, such as the United States, assault may refer only to the threat...
ing
Rodney KingRodney Glen King is a Black American who, on March 3, 1991, was the victim of police brutality, committed by Los Angeles police officers. A bystander, George Holliday, videotaped much of the incident from a distance.The footage showed LAPD officers repeatedly striking King with their batons...
in 1991 were acquitted by a
countyA county is a land area of local government within a country. A county may have cities and towns within its area. Originally, in continental Europe, a county was the land under the jurisdiction of a count .Counts are called earls in post-Celtic Britain, Ireland and France—the term is from Old...
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 StatesThe Southern United States—commonly referred to as the American South, Dixie, Down South, or simply the South—constitutes a large distinctive region in the southeastern and south-central United States...
in the 1960s during the time of the
Civil Rights MovementThe Civil Rights Movement was a worldwide political movement for equality before the law occurring between approximately 1950 and 1980. It was accompanied by much civil unrest and popular rebellion. The process was long and tenuous in many countries, and most of these movements did not achieve or...
, 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 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 McVeighTimothy James McVeigh was a United States Army veteran and security guard who was convicted of bombing the Alfred P. Murrah Building in Oklahoma City on April 19, 1995, the second anniversary of the Waco Siege, as revenge or to inspire a revolt against what he considered a tyrannical federal...
was
executedCapital punishment or the death penalty, is the execution of a person by judicial process as a punishment for an offense. Crimes that can result in a death penalty are known as capital crimes or capital offences....
by the federal government for murdering eight federal employees with a
bombA bomb is any of a range of explosive devices that typically rely on the exothermic chemical reaction of an explosive material to produce an extremely sudden and violent release of energy. The word comes from the Greek word βόμβος , an onomatopoetic term with approximately the same meaning as...
, but could also have been tried in state court for murdering numerous other persons in the same explosion. Furthermore, the 'separate sovereigns' rule allows two states to prosecute for the same criminal act. For example, if a man stood in New York and shot and killed a man standing over the border in Connecticut, both New York and Connecticut could charge the shooter with murder. (reference:
United States v. Claiborne, 92 F.Supp.2d 503 (E.D.Va.); tandem state-federal prosecutions
not prohibited under "sovereign rule")
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 judicataRes judicata or res iudicata is the Latin term for "a matter [already] judged", and may refer to two things: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal.; and the term is also used to refer to the legal doctrine...
operates within the
civil courtCivil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim...
system). For example, O.J. Simpson was acquitted of a double homicide in a
CaliforniaCalifornia is the most populous state in the United States, and the third largest by area. California is the second most populous sub-national entity in the Americas, behind only São Paulo, Brazil...
criminal prosecution, but lost a civil
wrongful death claimWrongful death is a claim in common law jurisdictions against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute...
brought over the same victims.
If the defendant happened to be on
paroleParole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole, meaning " word". Following its use in late-medieval Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners...
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. Since parolees are usually subject to restrictions not imposed on other citizens, evidence of actions that were not deemed criminal by the court may be re-considered by the parole board, which could deem the same evidence as proof of a parole violation. In addition, like civil trials parole violation hearings are also subject to a lower standard of proof so it is possible for a parolee to be punished by the parole board for criminal actions that he was acquitted of in court.
In the U.S. military courts martial are subject to the same law of double jeopardy, as the U.S. Constitution is the supreme law of the military, superseding the
Uniform Code of Military JusticeThe Uniform Code of Military Justice , is the foundation of military law in the United States. The UCMJ applies to all members of the Uniformed services of the United States: the Air Force, Army, Coast Guard, Marine Corps, Navy, National Oceanic and Atmospheric Administration Commissioned Corps,...
.
Nonjudicial punishmentNonjudicial punishment in the United States military, is a form of military discipline authorized by Article 15 of the Uniform Code of Military Justice. Nonjudicial punishment permits commanders to administratively discipline troops without a court-martial. The receipt of nonjudicial punishment...
is considered akin to a civil case and is subject to lower standards than a court martial, which is the same as a court of law. However if a non-judicial or NJP proceeding fails to produce conclusive evidence, the commanding officer (or ranking official presiding over the NJP) is not allowed to prepare the same charge against the military member in question. In a court martial, acquittal of the defendant means he is protected permanently from having those charges reinstated.
The most famous U.S. court case invoking the claim of double jeopardy is probably the second 1876 murder trial of
Jack McCallJohn "'Crooked Nose Jack' or 'Broken Nose Jack'" McCall , killed James "Wild Bill" Hickok, shooting him from behind, an act that among admirers of Hickok and students of Hickok's history has given rise to the phrase "the coward Jack McCall."- Life and murder of Hickok :Many of the...
, killer of Wild Bill Hickock. McCall was acquitted in his first trial, which federal authorities later ruled illegal because it took place in an illegal town,
DeadwoodDeadwood, named for the dead trees found in its gulch, is a city in and the county seat of Lawrence County, South Dakota, United States. The population was 1,380 as of the 2000 census...
, then located in South Dakota Indian Territory. At the time Federal law prohibited whites from settling in the Indian Territory, but this did not stop them from coming in droves after the discovery of gold in the area. McCall was retried in federal Indian Territorial court, convicted, and hanged in 1877. He was the first person ever executed by federal authorities in the Dakota Territory.
Double jeopardy also does not apply if the defendant was never tried from the start. Charges that were dropped or put on hold for any reason can always be reinstated in the future if not barred by any
statute of limitationsA statute of limitations is a statute in a common law legal system that sets forth the maximum period of time, after certain events, that legal proceedings based on those events may be initiated...
.
In 1989,
Kenneth CurtisKenneth Curtis is a murderer from Connecticut. He is notable for initially dodging justice by being found mentally incompetent to stand trial, but years later, as a pre-med student, being found competent and being ordered to stand trial for his crime....
was found
mentally incompetent to stand trialIn American law, competence concerns the mental capacity of an individual to participate in legal proceedings. Defendants that do not possess sufficient "competence" are usually excluded from criminal prosecution, while witnesses found not to possess requisite competence cannot testify...
for a murder he had committed two years earlier, which was followed by
an attempt to take his own lifeSuicide is the intentional killing of one's self. Many dictionaries also note the metaphorical sense of "willful destruction of one's self-interest"...
. He survived with severe physical and mental disability, and through a
competency evaluationIn the United States criminal justice system, a competency evaluation is an assessment of the ability of a defendant ability to understand and rationally participate in a court process....
, it was found that he was not mentally competent to stand trial. As a result, he was not incarcerated, and was allowed to live free. Years later, following an investigation chartered by the victim's parents, it was learned that he enrolled in college, and earned high grades. This led to the case being reopened. Curtis's lawyers took the case to the
Connecticut Supreme CourtThe Connecticut Supreme Court, formerly known as the Connecticut Supreme Court of Errors, is the highest court in the U.S. state of Connecticut. It consists of a Chief Justice and six Associate Justices. The seven justices sit in Hartford, across the street from the Connecticut State Capitol...
in an attempt to prevent him from being re-evaluated, but the court ruled in favor of the prosecution, and he later pleaded guilty.
See also
- Dutch and German law: Ne bis in idem
Ne bis in idem, which translates literally from Latin as "not twice for the same", means that no legal action can be instituted twice for the same cause of action...
- U.S. law: Fifth Amendment
United States
In favor of current rule prohibiting retrial after acquittal
Opposing the rule that prohibits retrial after acquittal
Other countries