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Double Jeopardy Prevents Someone Who Has Been Tried and Acquitted of a Crime From Being Tried Again

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Legal defence

Double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or like) charges post-obit an acquittal and in rare cases prosecutorial and/or judge misconduct in the same jurisdiction.[one] A variation in ceremonious law countries is the peremptory plea, which may accept the specific forms of autrefois behave ('previously acquitted') or autrefois convict ('previously convicted'). These doctrines appear to have originated in ancient Roman law, in the broader principle not bis in idem ('not twice against the same').[2]

Availability every bit a legal defence [edit]

If a double-jeopardy issue is raised, evidence will be placed earlier the courtroom, which volition typically rule as a preliminary thing whether the plea is substantiated; if information technology is, the projected trial volition be prevented from proceeding. In some countries certain exemptions are permitted. In Scotland a new trial tin can exist initiated if, for example, the acquitted has made a credible access of guilt. Office of English police force for over 800 years, it was partially abolished in England, Wales and Northern Ireland by the Criminal Justice Act 2003 where, following need for modify, serious offences may exist re-tried post-obit an acquittal if new and compelling bear witness is constitute and for the trial to be in the public'due south interest.[iii] In some countries, including Canada, Mexico, and the United States, the guarantee against being "twice put in jeopardy" is a constitutional right.[four] [5] In other countries, the protection is afforded past statute.[a]

In common law countries, a defendant may enter a peremptory plea of autrefois deport ('previously acquitted') or autrefois convict ('previously convicted'), with the same effect.[seven] [b]

Double jeopardy is non a principle of international law. It does non use betwixt different countries, unless having been contractually agreed on between those countries equally, for example, in the European union (Fine art. 54 Schengen Convention), and in various extradition treaties between ii countries.

International Covenant on Civil and Political Rights [edit]

The 72 signatories and 166 parties to the International Covenant on Civil and Political Rights recognise, nether Article 14 (7): "No one shall be liable to exist tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the police and penal procedure of each land." Still, it does non apply to prosecutions by two different sovereigns (unless the relevant extradition treaty expresses a prohibition).

European Convention on Human Rights [edit]

All members of the Council of Europe (which includes nearly all European countries and every member of the European Marriage) have adopted the European Convention on Man Rights.[9] The optional Protocol No. seven to the convention, Commodity 4, protects against double jeopardy: "No one shall be liable to exist tried or punished over again in criminal proceedings nether the jurisdiction of the same Land for an offence for which he or she has already been finally acquitted or convicted in accord with the law and penal procedure of that State."[10]

All Eu states ratified this optional protocol except for Germany, the United Kingdom, and kingdom of the netherlands.[11] In those member states, national rules governing double jeopardy may or may not comply with the provision cited above.

Member states may, however, implement legislation which allows reopening of a example if new evidence is institute or if in that location was a cardinal defect in the previous proceedings:[10]

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.

In many European countries, the prosecution may appeal an acquittal to a higher court.[ citation needed ] This is not regarded as double jeopardy, but equally a continuation of the same case. The European Convention on Man Rights permits this by using the phrase "finally acquitted or convicted" as the trigger for prohibiting subsequent prosecution.

By country [edit]

Australia [edit]

In contrast to other common law nations, Australian double jeopardy law has been held to further preclude the prosecution for perjury post-obit a previous amortization where a finding of perjury would controvert the acquittal. This was confirmed in the case of R five Carroll, where the police found new evidence assuredly disproving Carroll'southward sworn excuse two decades afterward 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 overturn of his conviction (for perjury) by the High Courtroom has led to widespread calls for reform of the law along the lines of the England and Wales legislation.

During a Council of Australian Governments (COAG) meeting of 2007, model legislation to rework double jeopardy laws was drafted,[12] but there was no formal agreement for each country to introduce it. All states have now called to introduce legislation that mirrors COAG'south recommendations on "fresh and compelling" testify.

In New South Wales, retrials of serious cases with a minimum sentence of 20 years or more are now possible even if the original trial preceded the 2006 reform.[thirteen] On 17 October 2006, the New Southward Wales Parliament passed legislation abolishing the rule against double jeopardy in cases where:

  • an acquittal of a "life sentence offence" (murder, violent gang rape, large commercial supply or production of illegal drugs) is debunked past "fresh and compelling" prove of guilt;
  • an acquittal of a "xv years or more sentence offence" was tainted (by perjury, blackmail, or perversion of the class of justice).

On 30 July 2008, Due south Australia too introduced legislation to scrap parts of its double jeopardy law, legalising retrials for serious offences with "fresh and compelling" evidence, or if the amortization was tainted.[14]

In Western Australia, amendments introduced on 8 September 2011 allow retrial if "new and compelling" bear witness is institute. It applies to serious offences where the penalty was life imprisonment or imprisonment for 14 years or more. Acquittal because of tainting (witness intimidation, jury tampering, or perjury) also permits retrial.[fifteen] [16]

In Tasmania, on nineteen Baronial 2008, amendments were introduced to permit retrial in serious cases if there is "fresh and compelling" evidence.[17]

In Victoria on 21 December 2011, legislation was passed allowing new trials where in that location is "fresh and compelling DNA evidence, where the person acquitted subsequently admits to the crime, or where information technology becomes articulate that key witnesses have given false prove".[12] Still, retrial applications could only be fabricated for serious offences such as murder, manslaughter, arson causing death, serious drug offences and aggravated forms of rape and armed robbery.[eighteen]

In Queensland on xviii 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 criminal offense carrying a 25-year or more sentence. A "tainted acquittal" requires a conviction for an administration of justice offence, such equally perjury, that led to the original acquittal. Unlike reforms in the Uk, New South Wales, Tasmania, Victoria, Due south Commonwealth of australia and Western Australia, this constabulary does non have a retrospective consequence, which is unpopular with some advocates of the reform.[nineteen]

Canada [edit]

The Canadian Charter of Rights and Freedoms includes provisions such as section 11(h) prohibiting double jeopardy. Yet, the prohibition merely applies subsequently an defendant person has been "finally" convicted or acquitted. Canadian law allows the prosecution to entreatment an acquittal. If the amortization is thrown out, the new trial is not considered to be double jeopardy since the verdict of the first trial is annulled. In rare circumstances, a court of appeal might also substitute a conviction for an acquittal. That is not considered double jeopardy since the appeal and the subsequent conviction are then deemed to exist a continuation of the original trial.

For an appeal from an acquittal to be successful, the Supreme Court of Canada requires the Crown to show that an error in law was fabricated during the trial and that it contributed to the verdict. It has been argued that this test is unfairly beneficial to the prosecution. For case, in his book My Life in Offense and Other Academic Adventures, Martin Friedland contends that the rule should be inverse then that a retrial is granted just when the error is shown to exist responsible for the verdict, not only a factor.

A notable example is Guy Paul Morin, who was wrongfully convicted in his 2nd trial afterwards the acquittal in his start trial was vacated by the Supreme Court of Canada.

In the Guy Turcotte example, for instance, the Quebec Courtroom of Appeal overturned Turcotte'southward non criminally responsible verdict and ordered a 2d trial after information technology found that the approximate committed an error in the first trial while instructions were given to the jury. Turcotte was subsequently convicted of 2d-degree murder in the 2d trial.

France [edit]

Once all appeals accept been exhausted on a case, the judgement is concluding and the action of the prosecution is airtight (lawmaking of penal procedure, art. 6), except if the concluding ruling was forged.[xx] Prosecution for a crime already judged is incommunicable even if incriminating evidence has been institute. However, a person who has been convicted may request another trial on the grounds of new exculpating evidence through a procedure known every bit révision.[21]

Germany [edit]

The Basic Law (Grundgesetz) for the Federal Republic of Frg protects against double jeopardy if a terminal verdict is pronounced. A verdict is final if nobody appeals against it.

Nobody shall be punished multiple times for the same crime on the basis of general criminal police.

—Art. 103 (3) GG[22] [23]

However, each trial party can entreatment confronting a verdict in the start instance. The prosecution or the defendants tin can appeal confronting a sentence if they disagree with it. In this example, the trial starts again in the second example, the courtroom of appeal (Berufungsgericht), which reconsiders the facts and reasons and delivers a final sentence.

If one of the parties disagrees with the 2d example'southward judgement, they tin can appeal information technology simply for formal judicial reasons. The instance will be checked in the third case (Revisionsgericht), whether all laws are applied correctly.

The rule applies to the whole "historical event, which is usually considered a unmarried historical class of actions the separation of which would seem unnatural". This is true even if new facts occur that indicate other crimes.

The Penal Procedural Code (Strafprozessordnung) permits a retrial (Wiederaufnahmeverfahren), if it is in favour of the defendant or if the post-obit events had happened:

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

  1. if a document that was considered authentic during the trial was really not authentic or forged,
  2. if a witness or authorised expert wilfully or negligently made a wrong degradation or wilfully gave a wrong simple testimony,
  3. if a professional person or lay judge, who made the decision, had committed a offense by violating his or her duties as a judge in the instance
  4. if an acquitted defendant makes a credible confession in courtroom or out of courtroom.

    —§ 362 StPO

In the case of an order of summary punishment, which tin be issued by the courtroom without a trial for lesser misdemeanours, there is a farther exception:

A retrial not in favour of the defendant is also permissible if the defendant has been bedevilled in a last society of summary punishment and new facts or evidence have been brought forward, which constitute grounds for a confidence of a felony by themselves or in combination with before testify.

—§ 373a StPO

In Frg, a felony is divers by § 12 (one) StGB equally a crime that has a minimum of one year of imprisonment.

India [edit]

A partial protection against double jeopardy is a Fundamental Right guaranteed nether Article twenty (2) of the Constitution of India, which states "No person shall be prosecuted and punished for the same offence more than in one case".[24] This provision enshrines the concept of autrefois convict, that no one bedevilled of an offence tin be tried or punished a second time. All the same, it does not extend to autrefois acquit, and so if a person is acquitted of a criminal offence he can be retried. In India, protection confronting autrefois acquit is a statutory right, non a primal one. Such protection is provided by provisions of the Code of Criminal Procedure rather than past the Constitution.[25]

Japan [edit]

The Constitution of Japan, which came into upshot on May 3, 1947, states in Commodity 39 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 1950, i defendant was found guilty in the District Courtroom for crimes related to the election law and was sentenced to paying a fine. The prosecutor wanted a stronger sentence and appealed to the High Court. As a result, the defendant was sentenced to three months of imprisonment. He appealed to the Supreme Court on the grounds that the sentence was excessive when compared with precedents and that he had been placed in double jeopardy, which was in violation of Article 39. On September 27, 1950, all fifteen judges of the Supreme Court made the Thou Bench Decision to rule against the defendant and declared that a criminal proceeding in the Commune Court, Loftier Court and Supreme Court is all i case and that in that location is no double jeopardy. In other words, if the prosecutor appeals against a judgement of not guilty or a guilty decision that they think does non impose a severe plenty judgement, the defendant will not be placed in double jeopardy.

On Oct ten, 2003, the Supreme Court made a landmark decision in the expanse of double jeopardy. The case involved Article 235 of the Penal Code, which addresses "uncomplicated larceny", and Commodity 2 of the Law for Prevention and Disposition of Robbery, Theft, etc., which addresses "habitual larceny". The Court ruled that in the event that in that location are two trials for separate cases of simple larceny, information technology will not be considered double jeopardy, even if the prosecutor could take charged both of them as a single crime of habitual larceny. The defendant in this example had committed crimes of trespassing and simple larceny on 22 separate occasions. The defense force counsel argued that the crimes were actually one offence of habitual larceny and that charging them every bit split up counts was double jeopardy. The Supreme Court ruled that it was inside the prosecutor's discretion as to whether to accuse the defendant with 1 count of habitual larceny or to charge them with multiple counts of trespassing and simple larceny. In either example, it is not considered double jeopardy.[26] [27] [28]

The Netherlands [edit]

In holland, the state prosecution can appeal a not-guilty verdict at the bench. New show can be applied during a retrial at a commune courtroom. Thus one tin exist tried twice for the aforementioned alleged criminal offense. If one is convicted at the district court, the defence tin make an appeal on procedural grounds to the supreme court. The supreme court might admit this complaint, and the case will be reopened all the same again, at some other district court. Again, new show might exist introduced by the prosecution.

On ix April 2013 the Dutch senate voted 36 "yes" versus 35 "no" in favour of a new police force that allows the prosecutor to re-endeavour a person who was found not guilty in court. This new law is limited to crimes where someone died and new show must accept been gathered. The new law also works retroactively.[ citation needed ]

Pakistan [edit]

Commodity xiii of the Constitution of Pakistan protects a person from being punished or prosecuted more than than one time for the same offence. Section 403 of The Lawmaking of Criminal Procedure contemplates of a state of affairs where as person having once been tried past a Court of competent jurisdiction and acquitted past such court cannot be tried over again for the aforementioned offence or for any other offence based on like facts. The scope of section 403 is restricted to criminal proceedings and not to ceremonious proceedings and departmental inquiries.

Serbia [edit]

This principle is incorporated into the Constitution of the Republic of Serbia and further elaborated in its Criminal Process Act.[29]

Due south Africa [edit]

The Bill of Rights in the Constitution of S Africa forbids a retrial when at that place has already been an acquittal or a conviction.

Every accused person has a correct to a fair trial, which includes the right ... not to exist tried for an offence in respect of an act or omission for which that person has previously been either acquitted or bedevilled ...

—Constitution of the Commonwealth of South Africa, 1996, s. 35(three)(m)

South Korea [edit]

Article 13 of the South Korean constitution provides that no citizen shall be placed in double jeopardy.[30]

United Kingdom [edit]

England and Wales [edit]

Double jeopardy has been permitted in England and Wales in certain (infrequent) circumstances since the Criminal Justice Human activity 2003.

Pre-2003 [edit]

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 every bit essential elements for protection of the subject area'south liberty and respect for due process of police in that in that location should be finality of proceedings.[vii] At that place were only three exceptions, all relatively recent, to the rules:

  • The prosecution has a right of appeal confronting amortization in summary cases if the decision appears to exist incorrect in law or in backlog of jurisdiction.[31]
  • A retrial is permissible if the interests of justice and so require, following appeal against confidence by a accused.[32]
  • A "tainted amortization", where there has been an offence of interference with, or intimidation of, a juror or witness, can be challenged in the High Court.[33]

In Connelly v DPP [1964] AC 1254, the Constabulary Lords ruled that a defendant could not be tried for any offence arising out of essentially the aforementioned fix 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", just information technology has been suggested that the emergence of new evidence would suffice.[34]

A accused who had been bedevilled 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 showtime conviction.[35] By contrast, a person who had been acquitted of a lesser offence could not exist tried for an aggravated form even if new show became bachelor.[36]

Postal service-2003 [edit]

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 prove afterward came to light. The Police force Commission later added its support to this in its report "Double Jeopardy and Prosecution Appeals" (2001). A parallel report into the criminal justice system past Lord Justice Auld, a past Senior Presiding Judge for England and Wales, had besides commenced in 1999 and was published as the Auld Report half dozen months subsequently the Law Commission report. Information technology opined that the Police force Commission had been disproportionately 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."[37]

Both Jack Straw (then Abode Secretarial assistant) and William Hague (then Leader of the Opposition) favoured this measure.[38] These recommendations were implemented—not uncontroversially at the fourth dimension—within the Criminal Justice Human activity 2003,[39] [40] and this provision came into force in April 2005.[41] It opened certain serious crimes (including murder, manslaughter, kidnapping, rape, armed robbery, and serious drug crimes) to a retrial, regardless of when committed, with 2 conditions: the retrial must be approved by the Director of Public Prosecutions, and the Courtroom of Entreatment must concord to quash the original acquittal due to "new and compelling evidence".[42] So Director of Public Prosecutions, Ken Macdonald QC, said that he expected no more than a scattering of cases to be brought in a twelvemonth.[43]

Pressure by Ann Ming, the female parent of 1989 murder victim Julie Hogg—whose killer, Billy Dunlop, was initially acquitted and subsequently confessed—also contributed to the demand for legal change.[43] On 11 September 2006, Dunlop became the starting time person to be convicted of murder following a prior acquittal for the aforementioned crime, in his instance his 1991 acquittal of Hogg's murder. Some years later he had confessed to the crime, and was convicted of perjury, just was unable to be retried for the killing itself. The case was re-investigated in early 2005, when the new law came into upshot, and his case was referred to the Court of Appeal, in November 2005, for permission for a new trial, which was granted.[43] [44] [45] Dunlop pleaded guilty to murder and was sentenced to life imprisonment, with a recommendation he serve no less than 17 years.[46]

On xiii December 2010, Mark Weston became the first person to be retried and constitute guilty of murder past a jury (Dunlop having confessed). In 1996 Weston had been acquitted of the murder of Vikki Thompson at Ascott-under-Wychwood on 12 Baronial 1995, but following the discovery in 2009 of compelling new bear witness (Thompson's blood on Weston's boots) he was arrested and tried for a second fourth dimension. He was sentenced to life imprisonment, to serve a minimum of 13 years.[47]

In December 2018, convicted paedophile Russell Bishop was too retried and institute guilty by a jury for the Babes in the Woods murders of two nine-year-old girls, Nicola Fellows and Karen Hadaway, on 9 Oct 1986. At the original trial in 1987, a key piece of the prosecution's case rested on the recovery of a discarded blue sweatshirt. Under questioning, Bishop denied that the sweatshirt belonged to him, but his girlfriend, Jennifer Johnson, alleged the clothing was Bishop's, before she changed her story in the trial, telling the jury she had never seen the elevation before.[48] Attributed to a serial of blunders in the prosecution'south case, Bishop was acquitted by the jury after 2 hours of deliberations.[48] Three years later, Bishop was constitute guilty of the abduction, molestation, and attempted murder of a 7-year-old girl in February 1990.[49] In 2014, re-examined by modern forensics, the sweatshirt contained traces of Bishop's Deoxyribonucleic acid, and as well had fibres on it from both of the girls' clothing.[49] Tapings taken from Karen Hadaway'southward arm also yielded traces of Bishop'due south Dna.[49] At the 2018 trial, a jury of vii men and v women returned a guilty verdict after two-and-a-half hours of deliberation.[48] [49]

On 14 November 2019, Michael Weir became the first person to exist twice plant guilty of a murder. He was originally convicted of the murder of Leonard Harris and Rose Seferian in 1999, but the conviction was quashed in 2000 by the Court of Appeal on a technicality. In 2018, new DNA evidence had been obtained and palm prints from both murder scenes were matched to Weir. Twenty years subsequently the original conviction, Weir was convicted of the murders for a second fourth dimension.[iii]

Scotland [edit]

The double jeopardy rule no longer applies absolutely in Scotland since the Double Jeopardy (Scotland) Deed 2011 came into strength on 28 November 2011. The Act introduced iii wide exceptions to the rule: where the acquittal had been tainted by an effort to pervert the class of justice; where the defendant admitted their guilt after acquittal; and where at that place was new bear witness.[50]

Northern Ireland [edit]

In Northern Ireland, the Criminal Justice Human activity 2003, constructive 18 April 2005,[51] makes certain "qualifying offence" (including murder, rape, kidnapping, specified sexual acts with young children, specified drug offences, divers acts of terrorism, as well as in certain cases attempts or conspiracies to commit the foregoing)[52] discipline to retrial afterward acquittal (including acquittals obtained before passage of the Act) if there is a finding by the Court of Appeal that there is "new and compelling evidence."[53]

United states [edit]

The ancient protection of the Common Law confronting double jeopardy is maintained in its full rigour in the Usa. The 5th Subpoena to the United States Constitution provides:

... nor shall any person exist subject area for the same offence to be twice put in jeopardy of life or limb; ...[54]

Conversely, double jeopardy comes with a key exception. Nether the multiple sovereignties doctrine, multiple sovereigns can indict a defendant for the aforementioned crime. The federal and state governments can have overlapping criminal laws, so a criminal offender may be convicted in private states and federal courts for exactly the same crime or for dissimilar crimes arising out of the aforementioned facts.[55] All the same, in 2016, the Supreme Court held that Puerto Rico is not a split sovereign for purposes of the Double Jeopardy Clause.[56] The dual sovereignty doctrine has been the subject of substantial scholarly criticism.[57]

As described by the U.South. Supreme Courtroom in its unanimous decision apropos Ball v. Usa 163 U.S. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is not against being twice punished, only against being twice put in jeopardy; and the defendant, whether convicted or acquitted, is equally put in jeopardy at the starting time trial."[58] The Double Jeopardy Clause encompasses four singled-out prohibitions: subsequent prosecution afterwards acquittal, subsequent prosecution later on conviction, subsequent prosecution after certain mistrials, and multiple punishment in the same indictment.[59] Jeopardy "attaches" when the jury is impanelled, the get-go witness is sworn, or a plea is accepted.[60]

Prosecution after acquittal [edit]

With two exceptions, the government is not permitted to appeal or retry the defendant once jeopardy attaches to a trial unless the example does not conclude. Conditions which constitute "decision" of a case include

  • After the entry of an amortization, whether:
    • a directed verdict earlier the case is submitted to the jury,[61] [62]
    • a directed verdict afterwards a deadlocked jury,[63]
    • an appellate reversal for sufficiency (except by directly appeal to a higher appellate court),[64] or
    • an "implied amortization" via conviction of a bottom included offence.[65]
  • re-litigating confronting the aforementioned defence force a fact necessarily found past the jury in a prior acquittal,[66] even if the jury hung on other counts.[67] In such a situation, the authorities is barred by collateral estoppel.

In these cases, the trial is concluded and the prosecution is precluded from appealing or retrying the accused over the offence to which they were acquitted.

This principle does not foreclose the government from appealing a pre-trial motility to dismiss[68] or other not-merits dismissal,[69] or a directed verdict later a jury conviction,[70] nor does it prevent the trial gauge from entertaining a motion for afterthought of a directed verdict, if the jurisdiction has so provided by rule or statute.[71] Nor does it prevent the authorities from retrying the defendant after an appellate reversal other than for sufficiency,[72] including habeas corpus,[73] or "thirteenth juror" appellate reversals withal sufficiency[74] on the principle that jeopardy has not "terminated".

The "dual sovereignty" doctrine allows a federal prosecution of an offence to proceed regardless of a previous state prosecution for that same offence[75] and vice versa[76] considering "an human action denounced every bit a crime past both national and land sovereignties is an offence confronting the peace and dignity of both and may be punished by each".[77] The doctrine is solidly entrenched in the constabulary, but at that place has been a traditional reluctance in the federal executive branch to gratuitously wield the ability it grants, due to public stance existence generally hostile to such action.[78]

Exceptions [edit]

The first exception to a ban on retrying a defendant is if, in a trial, the accused bribed the guess into acquitting him or her, since the defendant was not in jeopardy.[79]

The other exception to a ban on retrying a accused is that a member of the military can be retried by courtroom-martial in a armed services court, fifty-fifty if he or she has been previously acquitted past a noncombatant court.[80]

An private can be prosecuted by both the The states and an Indian tribe for the same acts that constituted crimes in both jurisdictions; information technology was established past the Supreme Court in Us v. Lara that every bit the ii are separate sovereigns, prosecuting a criminal offence under both tribal and federal law does not attach double jeopardy.[81]

Multiple penalization, including prosecution after confidence [edit]

In Blockburger v. United States (1932), the Supreme Courtroom announced the post-obit test: the authorities may separately try and punish the accused for two crimes if each crime contains an element that the other does non.[82] Blockburger is the default rule, unless the governing statute legislatively intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates,[83] [84] equally can conspiracy.[85]

The Blockburger test, originally developed in the multiple punishments context, is also the examination for prosecution after conviction.[86] In Grady five. Corbin (1990), the Court held that a double jeopardy violation could lie even where the Blockburger test was non satisfied,[87] but Grady was later distinguished in United states five. Felix (1992), when the court reverted to the Blockburger test without completely dismissing the Grady estimation. The court somewhen overruled Grady in Us 5. Dixon (1993).[88]

Prosecution after mistrial [edit]

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 regime specifically wanted a mistrial.[89] If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial.[xc] The same standard governs mistrials granted sua sponte.

Retrials are not common, due to the legal expenses to the regime. Nevertheless, in the mid-1980s Georgia antique dealer James Arthur Williams was tried a record four times for the murder of Danny Hansford and (after three mistrials) was finally acquitted on the grounds of self-defense.[91] The case is recounted in the book Midnight in the Garden of Proficient and Evil, [92] which was adapted into a picture directed by Clint Eastwood (the movie combines the four trials into one).[93]

Run into besides [edit]

  • Sam Sheppard
  • Emmett Till

Footnotes [edit]

  1. ^ For example, in Western Australia: "It is a defence force to a charge of any offence to prove that the accused person has already been tried, and convicted or acquitted upon an indictment or prosecution detect on which he might have been convicted of the offence with which he is charged, or has already been bedevilled or acquitted of an offence of which he might be convicted upon the indictment or prosecution notice on which he is charged."—[6]
  2. ^ The terminology apparently derived from Law French, and is a mixture of French autrefois 'at some other time [in the past]' and borrowed-English loanwords.[8]
  1. ^ Rudstein, David Due south. (2005). "A Cursory History of the Fifth Amendment Guarantee Against Double Jeopardy". William & Mary Bill of Rights Periodical. 14 (i).
  2. ^ Buckland, Due west. W. (1963). A Text-book of Roman Law from Augustus to Justinian (iii ed.). Cambridge: Cambridge UP. pp. 695–6.
  3. ^ a b "Michael Weir guilty of 1998 'double jeopardy' murders". BBC News. 14 November 2019. Retrieved 14 November 2019.
  4. ^ "Canadian Charter of Rights and Freedoms". Archived from the original on 10 January 2016. , s 11 (h), Part I of the Constitution Human action, 1982, beingness Schedule B to the Canada Act 1982 (UK), 1982, c 11
  5. ^ "U.Southward. Constitution". 30 October 2015. Amend. V.
  6. ^ "Criminal Code Act Compilation Act 1913, Appendix B, Sch "The Criminal Code" s 17(1)".
  7. ^ a b Benét, Stephen Vincent (1864). A Treatise on Military Police force and the Practice of Courts-martial. p. 97.
  8. ^ Holdsworth, Sir William (1942). A History of English Constabulary. Vol. 3 (5 ed.). London: Methuen and Sweet & Maxwell. pp. 611, 614.
  9. ^ "Chart of signatures and ratifications of Treaty 005 (Convention for the Protection of Man Rights and Primal Freedoms)". Council of Europe. 3 November 2020. Archived from the original on 3 November 2020. Retrieved three November 2020.
  10. ^ a b "European Convention on Human Rights, every bit amended by Protocols Nos. 11 and fourteen, supplemented past Protocols Nos. 1, four, 6, 7, 12 and thirteen" (PDF). Council of Europe. Retrieved 31 March 2018.
  11. ^ "Protocol No. seven to the Convention for the Protection of Human Rights and Fundamental Freedoms". Council of Europe.
  12. ^ a b "Coalition Government to introduce double jeopardy reforms". Victoria's double jeopardy laws to be reworked. Archived from the original on 22 March 2012. Retrieved four February 2012.
  13. ^ Duffy, Conor (seven September 2006). "NSW seeks to scrap double jeopardy principle". The World Today.
  14. ^ "Criminal Police force Consolidation (Double Jeopardy) Amendment Human action 2008". Retrieved sixteen Oct 2011.
  15. ^ "Chaser General Christian Porter welcomes double jeopardy police reform". 8 September 2011. Retrieved 16 Oct 2011.
  16. ^ "WA the next state to axe double jeopardy". 8 September 2011. Retrieved 16 October 2011.
  17. ^ "Double Jeopardy Law Reform". Tasmanian Government Media Releases. Retrieved 16 October 2011. [ dead link ]
  18. ^ "Criminal Process Amendment (Double Jeopardy and Other Matters) Bill 2011".
  19. ^ "Double Jeopardy Changes Insufficient". Brisbane Times. 20 April 2007.
  20. ^ "Lawmaking of penal procedure, article six" (in French). Legifrance. Retrieved 2 January 2012.
  21. ^ "Code of penal procedure, articles 622–626" (in French). Legifrance. Retrieved 2 Jan 2012.
  22. ^ "Grundgesetz für die Bundesrepublik Deutschland" [Bones Police for the Federal Democracy of Frg] (PDF) (in German).
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Further reading [edit]

  • Sigler, Jay (1969). Double jeopardy; the development of a legal and social policy . Cornell University Press [1969].

External links [edit]

Australia [edit]

In favour of current rule prohibiting retrial after acquittal
  • NSW Public Defenders Office
Opposing the dominion that prohibits retrial later acquittal
  • Questioning Double Jeopardy
  • DoubleJeopardyReform.Org

United Kingdom [edit]

Research and Notes produced for the United kingdom of great britain and northern ireland Parliament, summarising the history of legal change, views and responses, and analyses:

  • Broadbridge, Sally (2 December 2002). "Research newspaper 02/74: The Criminal Justice Bill: Double jeopardy and prosecution appeals" (PDF). United kingdom of great britain and northern ireland parliament. Archived from the original (PDF) on 20 Nov 2006. Retrieved five Jan 2012.
  • Broadbridge, Sally (28 January 2009). "Double jeopardy". Uk Parliament. Retrieved 5 January 2012. (direct download link)

Us [edit]

  • FindLaw Annotation of the Fifth Amendment to the Constitution
  • Double Jeopardy Game on uscourts.gov (archived from the original on 2006-01-10)
  • Jack McCall (famous murder case involving a claim of double jeopardy)

Other countries [edit]

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

barnestrustold87.blogspot.com

Source: https://en.wikipedia.org/wiki/Double_jeopardy

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