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Double jeopardy is a procedural defence that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal or conviction. In common law countries, a defendant may enter a peremptory plea of autrefois acquit or autrefois convict (autrefois means "previously" in French), meaning the defendant has been acquitted or convicted of the same offence.
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. In some countries, the guarantee against being "twice put in jeopardy" is a constitutional right; these include Canada, Mexico and the United States. In other countries, the protection is afforded by statute law.
In contrast to other common law nations, 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 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 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.
During a Council of Australian Governments meeting of 2007, model legislation to rework double jeopardy laws was drafted, but there was no formal agreement for each state to introduce it. All states have now chosen to introduce legislation that basically 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, whether or not the original trial preceded the 2006 reform. On 17 October 2006, the NSW Parliament passed legislation abolishing the rule against double jeopardy in cases where:
In South Australia, on 30 July 2008 the government introduced legislation to scrap parts of its double jeopardy law. Retrials for serious offences, where there is "fresh and compelling" evidence, or if the acquittal was tainted were proposed.
In Western Australia, on 8 September 2011 amendments were introduced in the parliament to reform the state's double jeopardy laws. The proposed amendments would allow retrial if "new and compelling" evidence was found. It would apply to serious offences where the penalty was life imprisonment or imprisonment for 14 years or more. Acquittal because of tainting (threatening of witnesses, jury tampering, or perjury) would also allow retrial.
In Victoria on 21 December 2011, legislation was passed by the Victorian Parliament 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".
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 soon to be Western Australia, this law does not have a retrospective effect, which is unpopular with some advocates of the reform.
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The Canadian Charter of Rights and Freedoms includes provisions such as section 11(h) prohibiting double jeopardy. However, often, this prohibition applies only after the trial is finally concluded. 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 that 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.
Notable examples of this are David Ahenakew, who was tried a second time after being acquitted and 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.
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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 on Human Rights, which protects against double jeopardy. The optional Seventh Protocol to the Convention, 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 or she has already been finally acquitted 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 optional protocol has been ratified by all EU states except five (namely Belgium, Germany, Spain, the Netherlands, and United Kingdom). In those member states, national rules governing double jeopardy may or may not comply with the provision cited above.
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 quotation.
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 through a procedure known as révision.
In Germany, the Basic Law for the Federal Republic of Germany does not provide comprehensive 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, both the prosecution and defence may appeal against the verdict on questions of law and fact in less serious offences; in more serious offences, appeals are restricted to questions of law.
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 Penal Procedural Code (Strafprozessordnung – StPO) provides some exceptions to the double jeopardy rule:
A retrial not in favour of the defendant is permissible after a final judgment,
- if a document that was considered authentic during the trial was actually not authentic or forged,
- if a witness or authorised expert wilfully or negligently made a wrong deposition or wilfully gave a wrong simple testimony,
- 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
- 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 or 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.
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A partial protection against double jeopardy is a Fundamental Right guaranteed under Article 20 (2) of the Constitution of India. This states that ""No person shall be prosecuted and punished for the same offence more than once". 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 statuatory right, not a fundamental right. Such protection is provided by provisions of the Code of Criminal Procedure rather than by the Constitution.
The 72 signatories and 166 parties to the International Covenant on Civil and Political Rights recognise this rule, 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.
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The Constitution of Japan states in Article 39 that
In practice, however, if someone is acquitted in a lower District Court, then the prosecutor can appeal to the High Court, and then to the Supreme Court. Only the acquittal in the Supreme Court is the final acquittal which prevents any further retrial. This process sometimes takes decades.
The above is not considered a violation of the constitution. Because of Supreme Court precedent, this process is all considered part of a single proceeding.
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.
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Article 13 of the Constitution of Pakistan protects a person from being punished or prosecuted more than once for the same offence.
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This principle is incorporated in to the Constitution of the Republic of Serbia and further elaborated in its Criminal Procedure Act.
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)
Article 13 of the South Korean constitution provides that no citizen shall be shall be placed in double jeopardy.
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 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:
In Connelly v DPP ( 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.
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. 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.
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."
These recommendations were implemented—not uncontroversially at the time—within the Criminal Justice Act 2003, and this provision came into force in April 2005. 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". Pressure by Ann Ming, the mother of 1989 murder victim Julie Hogg—whose killer, William Dunlop, was initially acquitted in 1991 and subsequently confessed—also contributed to the demand for legal change.
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 Julie 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. Dunlop pled guilty to murdering Julie Hogg and having sex with her dead body repeatedly, and was sentenced to life imprisonment, with a recommendation he serve no less than 17 years.
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 of compelling new evidence in 2009—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.
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 his guilt after acquittal; and where there was new evidence.
In Northern Ireland the Criminal Justice Act 2003, effective 18 April 2005, 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) subject to retrial after acquittal (including acquittals obtained before passage of the Act) if there is a finding by the Court of Appeals that there is "new and compelling evidence."
The Fifth Amendment to the United States Constitution provides:
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. Jeopardy "attaches" when the jury is empanelled, the first witness is sworn, or a plea is accepted.
The government is not permitted to appeal or try again after the entry of an acquittal, whether a directed verdict before the case is submitted to the jury, a directed verdict after a deadlocked jury, an appellate reversal for sufficiency (except by direct appeal to a higher appellate court), or an "implied acquittal" via conviction of a lesser included offence. In addition, the government is barred by collateral estoppel from re-litigating against the same defence a fact necessarily found by the jury in a prior acquittal, even if the jury hung on other counts.
This principle does not prevent the government from appealing a pre-trial motion to dismiss or other non-merits dismissal, or a directed verdict after a jury conviction, 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. Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency, including habeas, or "thirteenth juror" appellate reversals notwithstanding sufficiency on the principle that jeopardy has not "terminated." There may also be an exception for judicial bribery, but not jury bribery.
There have been exceptions to double jeopardy in the past, such as the retrial of officers involved in the 1991 Rodney King beating. This exception stems from the ability of different sovereignties to charge individuals for the same crime. Here, the officers were first acquitted by state court and subsequently charged and tried by federal court, which are different sovereignties. The exception to this exception exists between city and state sovereignties located within the same state. Although cities are different sovereignties than the state they are located within, the two are not permitted to attach jeopardy more than once cumulatively.
Another exception is the perpetrator can be retried by court martial in a military court, if they have been previously acquitted by a civilian court, and are members of the military.
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. Blockburger is the default rule, unless it legislatively intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates, as can conspiracy.
The Blockburger test, originally developed in the multiple punishments context, is also the test for prosecution after conviction. In Grady v. Corbin (1990), the Court held that a double jeopardy violation could lie even where the Blockburger test was not satisfied, but Grady was overruled in United States v. Dixon (1993).
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. If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial. The same standard governs mistrials granted sua sponte.
Research and Notes produced for the UK Parliament, summarising the history of legal change, views and responses, and analyses: