Double Jeopardy

4 Key excerpts on "Double Jeopardy"

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  Courts, Law, and Justice

  • William J. Chambliss(Author)
  • 2011(Publication Date)
  • SAGE Publications, Inc

    (Publisher)

  31 3 Double Jeopardy Paul D. Steele Morehead State University T he Double Jeopardy rule prohibits being tried in federal or state court more than once for the same criminal offense. The Double Jeopardy Clause of the Fifth Amendment to the Constitution states that: “… nor shall any person be subject for the same offense to be twice put in jeop-ardy of life or limb …” In practice, it can be used as a procedural defense in that the defendant may plead that they have previously been acquitted or con-victed for the same offense. This is a matter that is usually raised and resolved prior to a trial, a rare exception to the general rule prohibiting appeals from nonfinal orders. If the defendant is able to produce evidence substantiating the assertion of Double Jeopardy, the court may not allow the trial to proceed. Double Jeopardy is an ancient and seemingly simple doctrine in the law that enjoys widespread public support. Contemporary legal scholars and decision makers consider the protection against Double Jeopardy to be a fundamental aspect of the relationship between citizens and their govern-ment. While the doctrine itself seems straightforward, its interpretation has generated controversy and misunderstanding. Some of this can be attributed to the evolution of the Double Jeopardy doctrine and to historical shifts in its application. Other disagreements have emerged concerning the applica-tion of its cornerstone elements and granting of exceptions to the doctrine. Some legal scholars have concluded that the controversy is grounded in ba-sic differences among members of the U.S. Supreme Court concerning the 32 Courts, Law, and Justice fundamental intent of the Double Jeopardy doctrine itself. As a consequence, members of the Court and other legal experts find it difficult to agree in the interpretation and application of key terms such as acquittal, multiple pun-ishments, and same offense. Even the concept of what constitutes jeopardy is open to interpretation.

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  Human Rights Controversies

  The Impact of Legal Form

  • Luke McNamara(Author)
  • 2007(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  International Covenant on Civil and Political Rights (ICCPR), and the practical significance that it has long held and the status that it has long enjoyed in the common-law tradition (as Prakash has noted, ‘Implicitly, it acts as a limit on State power by preventing prosecution as an instrument of oppression’ 5), are regarded as sufficient to justify the ‘right’ designation. The New Zealand Law Commission has stated that what is ‘known as “the rule against Double Jeopardy”. . . is a basic safeguard of civil liberties in every legal system comparable with our own’. 6 An adjective commonly used to convey both the.age and the importance of the rule against Double Jeopardy is ‘ancient’. 7 But in recent years the antiquity of the rule against Double Jeopardy has taken on a new significance. In three of the four states that are the subject of the present comparative study, legislators have moved to ‘roll back’ the protection extended by the rule against Double Jeopardy principle so as to allow for the re-prosecution of a person who has been acquitted in certain circumstances. In 2003 the United Kingdom (UK) Parliament enacted the Criminal Justice Act 2003. Part 10 of this Act, which came into force on 4 April 2005, introduced a ‘new and compelling evidence’ exception to the rule against Double Jeopardy. 8 In the same year, Australia’s Standing Committee of Attorneys General considered the matter, with the New South Wales Government proceeding to circulate a consultation draft – Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW). Three years later, attempts to develop a uniform national approach modelled on the UK’s approach were at an impasse. In 2004, the New Zealand Government introduced into the Parliament a Criminal Procedure Bill that will, inter alia, amend the Crimes Act 1961 (NZ) to add a ‘tainted acquittal’ and a ‘new and compelling evidence’ exception to the rule against Double Jeopardy

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  International Law

  Contemporary Issues and Future Developments

  • Sanford Silverburg(Author)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  But if the national court prosecutes Jane not for the international crime of genocide but instead for the “ordinary crime” of homicide, the international tribunal may still prosecute Jane for that same act under the international law proscribing genocide. Because the prior national court proceedings did not apply and enforce international law but prosecuted only for “ordinary crimes” under national law, the national court did not act as the decentralized “international sovereign.” The international tribunal, therefore, could continue to represent a distinct lawgiver (the international legal system) applying and enforcing a distinct law (international law), in respect of a distinct crime (an international crime), resulting from acts for which an individual already was prosecuted in national court. 171 Finally, and perhaps most fascinatingly, these same rules of international Double Jeopardy seem to have been articulated in a U.S. Supreme Court opinion from 1820, the same year the Court began to develop the jurisdictional reasoning that underpins the dual sovereignty doctrine in the U.S. federal system today. 172 United States v. Furlong explained in dicta that if someone were prosecuted in U.S. courts for piracy, an offense against the “law of nations” and subject to a shared “universal jurisdiction” by all states, 173 that person would have a Double Jeopardy defense against a successive prosecution in the courts of any other “civilized State.” 174 But the same would not hold regarding successive prosecutions for the parochial crime of murder

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  Cambridge Yearbook of European Legal Studies, Vol 10, 2007-2008

  • Catherine Barnard(Author)
  • 2008(Publication Date)
  • Hart Publishing

    (Publisher)

  Once a trial has been carried out, surrounded by all the appropriate procedural guarantees, and the issue of the individual’s possible debt to society has been assessed, the state should not subject him or her to the ordeal of a new trial (or, to use the terminology of Anglo-American legal systems, place him or her in ‘Double Jeopardy’ 21 ). As Justice Black of the Supreme Court of the United States concisely put it: … the underlying idea … is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal, compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. 22 B. International and Supranational Manifestations of Ne Bis In Idem The right not to be prosecuted twice for the same acts has evolved into a fundamental human right. As such, it has been codified in a number of international conventions. It is important to note that these codifications do not deal with transnational applications of the ne bis in idem principle. Rather, they set out in an international instrument the standard to which each individual state signatory agrees to subscribe in applying the principle within its own national legal system. Thus, at UN level, Article 14(7) of the 1966 International Covenant on Civil and Political Rights states that: 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 . 23 26(2) 131, in particular at 138. The principle of finality of criminal proceedings also under-lies the principle of ne bis in idem . However, the finality value is closely related to the main rationale of the principle, namely the protection of the individual against the jus puniendi of the state.

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