Double jeopardy

For other uses, see Double jeopardy (disambiguation).

Double jeopardy (ne bis in idem) is a procedural defense (and, in many countries such as the United States, Canada, Mexico and India, a constitutional right) that forbids that a defendant be tried twice for the same crime on the same set of facts. At common law a defendant may plead autrefois acquit or autrefois convict (a peremptory plea), 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 all states, prosecutors can appeal against the sentence handed down by the trial judge and, in South Australia and Tasmania, the prosecution can appeal against an error of law made by the trial judge in certain situations. However, the acquittal will still stand valid and the purpose of the appeal is merely to clarify the relevant law for future cases.

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

In December 2006, New South Wales Premier Morris Iemma 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 crime carrying a 25-year or more sentence. 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 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 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. But like who really cares?

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 Friedland, 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.

Europe

Article 50 of the Charter of Fundamental Rights of the European Union protects against double jeopardy.

All members of the Council of Europe (which includes nearly all European countries, and every member 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 five (namely Belgium, Germany, The Netherlands, 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.

England and Wales

The doctrines of autrefois acquit and autrefois convict persisted as part of the common 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 process 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 DPP ([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 2003. Following the murder of Stephen Lawrence, the MacPherson Report suggested that double jeopardy should be abrogated where "fresh and viable" new evidence came to light, and the Law Commission recommended in 2001 that it should be possible to subject an acquitted murder suspect to a second trial. The Parliament of the United Kingdom implemented these recommendations by passing the Criminal Justice Act 2003, introduced by then Home Secretary David Blunkett. Under the 2003 Act, retrials are now allowed if there is "new" and "compelling" evidence for crimes, including murder, but also manslaughter, kidnapping, rape, armed robbery, and serious drug crimes. All cases must be approved by the Director of Public Prosecutions, and the Court Of Appeal 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 Billingham in 1989, but two juries failed to reach a verdict and he was formally acquitted in 1991. Some years later, he confessed to the crime, and was convicted of perjury. The case was re-investigated in early 2005, when the new law came into effect, and his case was referred to the Court of Appeal in November 2005 for permission for a new trial.

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 Scotland the old double jeopardy rule still applies.

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.

Germany

In Germany, the Basic Law for the Federal Republic of Germany provides protection against double jeopardy:

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

— Art. 103 (3) GG

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 (Strafprozessordung - StPO) provides some exceptions to the double jeopardy rule:

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

1. if a document that was considered authentic during the trial was actually not authentic or fudged,
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 (Strafbefehl), which can be issued by the court without a trial for lesser misdemeanours (German: Vergehen), 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 of in combination with earlier evidence.

— § 373a StPO

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 India, 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 India. 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 again acquit and autrefois convict means again convict. 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 twice. But if a person is prosecuted and punished then he can't be prosecuted again.

Japan

The Japanese Constitution states that

• Article 39

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 Constitution, the relevant clause of which reads

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb

This clause is intended to limit 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 which have already been the subject of a final judgment.

More specifically, as stated in Ashe v. Swenson, 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 estoppel. 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, and
• being punished multiple times for the same offense.

This rule 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 a substantially similar charge. Fong Foo v. United States, 369 U.S. 141 (1962).

Though the Fifth Amendment initially applied only to the federal government, the US Supreme Court has ruled that the double jeopardy clause applies to the states as well through incorporation by the Fourteenth Amendment (Benton v. Maryland).

Jeopardy attaches in a jury trial once the jury and alternates are impaneled 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

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 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. 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 v. Judges of the Criminal Division, Circuit Court of Cook County, Illinois, et al., 138 F.3d 302 (1998), an appeals court ruled that a man who bribed his trial judge and was acquitted of murder was allowed to be tried again because his bribe prevented his first trial from actually putting him in jeopardy.

The other exception is that prosecutors may appeal when a trial judge sets aside a jury verdict for conviction with a judgment notwithstanding the verdict for the defendant. A successful appeal by the prosecution would simply reinstate the jury verdict and so would not place the defendant at risk of another trial.

The Supreme Court has also upheld laws allowing the government to appeal criminal sentences in limited circumstances (such as 18 U.S.C. § 3742(b)). The Court ruled that sentences were not accorded the same constitutional finality as jury verdicts under the double jeopardy clause, and giving this right of appeal also did not put the defendant at risk of a succession of prosecutions.

Double jeopardy is also not implicated for separate offenses or in separate jurisdictions arising from the same act. For example, in United States v. Felix 503 U.S. 378 (1992), the Supreme Court ruled: 'a[n]...offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes.'

As another example, a state might try a defendant for murder, after which the federal government might try the same defendant for a federal crime (perhaps a civil rights violation or kidnapping) related to the same act. For example, the Los Angeles Police Department officers charged with assaulting Rodney King in 1991 were acquitted by a county court, but some were later convicted and sentenced in federal court for violating his civil rights. Similar techniques were used for prosecuting racially-motivated crimes in the Southern United States in the 1960s during the time of the Civil Rights Movement, when those crimes had not been actively prosecuted, or had resulted in acquittals by juries thought to be racist or sympathetic to the accused in local courts.

The 'separate sovereigns' exception to double jeopardy arises from the unique nature of the American federal system, in which states are considered to be sovereigns with plenary power that have relinquished a number of enumerated powers to the federal government. Double jeopardy attaches only to prosecutions for the same criminal act by the same sovereign, but as separate sovereigns, both the federal and state governments can bring separate prosecutions for the same act. For example, Timothy McVeigh was executed by the federal government for murdering eight federal employees with a bomb, but could also have been tried in state court for murdering numerous other persons in the same explosion. 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 judicata operates within the civil court system). For example, O.J. Simpson was acquitted of a double homicide in a California criminal prosecution, but lost a civil wrongful death claim brought over the same victims.

If the defendant happened to be on parole from an earlier offense at the time, the act for which he was acquitted may also be the subject of a parole violation hearing, which is not considered a criminal trial. 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 US military courts martial are subject to the same law of double jeopardy, as the US Constitution is the supreme law of the military, superseding the Uniform Code of Military Justice. 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 US court case invoking the claim of double jeopardy is probably the second 1876 murder trial of Jack McCall, killer of Wild Bill Hickock. McCall was acquitted in his first trial, which was ruled illegal because it took place in an illegal town, Deadwood, 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 Indian court, convicted, and hanged.

See also

• Dutch and German law: Ne bis in idem
• U.S. law: Fifth Amendment

External links

United States

• FindLaw Annotation of the Fifth Amendment to the Constitution
• Double Jeopardy Game on uscourts.gov

Australia

In favor of current rule prohibiting retrial after acquittal

• NSW Public Defenders Office

Opposing the rule that prohibits retrial after acquittal

• Questioning Double Jeopardy

• DoubleJeopardyReform.Org

Other countries

• Law Reform Commission of Ireland Consultation Paper on Prosecution Appeals Brought on Indictment