Gavin Howe
The law of double jeopardy is a procedural defence that prevents an accused person from being tried again for the same crime following an acquittal or conviction. It is a common concept in criminal law, and in some countries, including the US, Canada, and Mexico, it is a constitutional right. However, there are situations in which double jeopardy does not apply, and it can be invalidated. For example, in the US, the Supreme Court has ruled that a person can be tried and convicted for the same offence in both state and federal courts, which is known as the dual sovereignty doctrine. Additionally, in some countries, certain exemptions are allowed, such as in Scotland, where a new trial can be initiated if the acquitted person has made a credible admission of guilt.
| Characteristics | Values |
|---|---|
| What is double jeopardy? | A procedural defence that prevents an accused person from being tried again on the same or similar charges following an acquittal or conviction. |
| Where does the concept originate? | Ancient Roman law, in the broader principle non bis in idem ('not twice against the same'). |
| Where does it apply? | In common law countries, including the US, Canada, Mexico, and the UK. |
| What are the exemptions? | In Scotland, a new trial can be initiated if the acquitted has made a credible admission of guilt. |
| Has it ever been invalidated? | Partially abolished in England, Wales, and Northern Ireland by the Criminal Justice Act 2003, where serious offences may be retried following an acquittal if new and compelling evidence is found and if the trial is in the public interest. |
| What about in the US? | The Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for the same crime. |
| What about in other countries? | The International Covenant on Civil and Political Rights, and the European Convention on Human Rights, both recognise the right against double jeopardy. |
| Are there any exceptions to the rule? | Yes, the dual sovereignty doctrine recognises the separate authority of federal and state governments, allowing for separate prosecutions. |
| What about in military courts? | Court-martial cases are subject to the same law of double jeopardy as civilian courts. |
| Can new evidence invalidate double jeopardy? | No, the prosecution cannot charge a defendant again if new evidence is found after an acquittal. |
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What You'll Learn
Double jeopardy and the US Constitution
Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same or similar charges following an acquittal or conviction. The concept originated in ancient Roman law, with the principle "non bis in idem" ("not twice against the same").
In the United States, the right against double jeopardy is a constitutional guarantee, outlined in the Fifth Amendment to the US Constitution, which states that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb". This protection applies only to criminal cases, and it is a core safeguard for criminal defendants, preventing multiple prosecutions and punishments for the same crime.
The US Supreme Court has interpreted the Fifth Amendment's Double Jeopardy Clause to apply to all types of felonies, misdemeanours, and juvenile delinquency adjudications, regardless of the potential punishment. For example, in Jones, 421 U.S. 519 (1975), the Supreme Court ruled that double jeopardy applies to an individual tried as a juvenile and then as an adult for the same crime.
However, there are exceptions and complexities to the application of double jeopardy. For instance, in the case of dual sovereignty, the Supreme Court ruled in 2019 (Gamble v. United States) that a person acquitted or convicted in a state court could be subsequently prosecuted and convicted federally for the same offence. This recognises the separate authority of federal and state governments. Additionally, double jeopardy does not apply to civil sanctions unless they are applied in a punitive manner, as in United States v. Halper, 490 U.S. 435 (1989).
Furthermore, double jeopardy does not apply in situations where a mistrial is declared or when a conviction is reversed on appeal, as these cases lack a final judgment. While most state constitutions also protect against double jeopardy, they cannot provide lesser protection than the US Constitution.
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Double jeopardy in military courts
Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same or similar charges following an acquittal or conviction. It is a common concept in criminal law, and in civil law, a similar concept is res judicata. The double jeopardy protection in criminal prosecutions bars only an identical prosecution for the same offence.
In the United States, the Fifth Amendment provides that "no person shall [...] be subject for the same offence to be twice put in jeopardy of life or limb". However, double jeopardy protections do not apply to all cases. For example, in the case of Jones v. United States, the Supreme Court found that double jeopardy does not apply when a minor is tried as a juvenile and then later tried as an adult for the same crime. Additionally, in the case of United States v. Ursery, the Supreme Court held that civil property forfeitures did not constitute "punishment" for the purposes of the double jeopardy clause.
In the context of military courts, double jeopardy protections exist for service members under Article 44 of the Uniform Code of Military Justice (UCMJ), which prohibits a service member from "being tried a second time for the same offence". However, there are important exceptions and limitations to these protections. For example, double jeopardy protections do not apply to non-judicial punishments (NJP) under Article 15 of the UCMJ, and a service member who faces a court-martial for the same incident may still be subject to administrative punishments such as forfeiture of pay. Additionally, a service member who is acquitted in a civilian court can still be tried in a court-martial for the same incident due to the doctrine of separate or dual sovereigns, where the state or foreign government is considered a different sovereign from the federal government.
It is important to note that the application of double jeopardy in military courts can be complex, and there may be variations in different jurisdictions. Service members facing criminal charges in military courts should consult with an attorney experienced in military law to understand their rights and protections fully.
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Double jeopardy in civil law
Double jeopardy is a procedural defence that prevents a person from being tried again on the same or similar charges following an acquittal or conviction. It is a common concept in criminal law, and in civil law, a similar concept is res judicata. While double jeopardy is a protection in criminal prosecutions, barring an identical prosecution for the same offence, res judicata is a stronger protection, precluding any causes of action or claims that arise from previously litigated subject matter.
In common law countries, a defendant may enter a peremptory plea of autrefois acquit (previously acquitted) or autrefois convict (previously convicted). Double jeopardy is a constitutional right in some countries, including Canada, Mexico, and the United States. In other countries, it is afforded by statute. It is not a principle of international law, except when contractually agreed upon between countries, as in the European Union and various extradition treaties.
The International Covenant on Civil and Political Rights, signed by 72 countries and with 166 parties, includes Article 14 (7), which states: "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." This protects against double jeopardy but does not apply to prosecutions by two different sovereigns unless specified in an extradition treaty. The European Convention on Human Rights, adopted by all members of the Council of Europe, includes the Optional Protocol No. 7, which also protects against double jeopardy.
While double jeopardy applies to multiple prosecutions, it does not apply to multiple punishments. The Eighth Amendment's Excessive Fines Clause can control government overreaching through multiple punishments. Forfeiture of proceeds from crimes and penalties that compensate the government for investigation and prosecution costs are not considered punishment.
In the United States, the Fifth Amendment includes the Double Jeopardy Clause, which prohibits prosecuting anyone twice for substantially the same crime. Not every sanction qualifies under this rule; typically, only sanctions considered "punishment" qualify. The Supreme Court has incorporated the Double Jeopardy Clause against the states, and it has been applied to civil sanctions that are punitive in nature. However, civil property forfeitures have been held not to constitute "punishment" for the purposes of the Double Jeopardy Clause.
In summary, double jeopardy in civil law refers to the protection against being tried or punished twice for the same offence. While it primarily applies to criminal prosecutions, it can also extend to civil sanctions that are punitive in nature, depending on the jurisdiction and specific legal interpretations.
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Double jeopardy in juvenile courts
The law of double jeopardy can be invalidated in certain situations. Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same or similar charges following an acquittal or conviction. However, there are exceptions to this rule. For example, in some countries, new and compelling evidence may warrant a retrial, as seen in England, Wales, and Northern Ireland.
In the context of juvenile courts, double jeopardy applies when a minor is tried as a juvenile and then faces the possibility of being tried again as an adult for the same crime. In the United States, the Supreme Court has ruled that such a scenario violates the double jeopardy rule. This is because juvenile courts have the discretion to try a minor as an adult, and once that decision is made, double jeopardy attaches. However, if new evidence is discovered or if there was a fundamental defect in the previous trial, a case can be reopened, which is not considered double jeopardy but a continuation of the same case.
Juvenile justice in the United States has been criticised for a recent emphasis on punishment instead of rehabilitation, and for failing to ensure permanence and stability for children in out-of-home placements. There is also criticism of discrimination against unmarried mothers, racial and religious minorities, and females, as well as inadequate mental health services. These issues can impact the application of double jeopardy in juvenile courts, as they may influence the outcomes of trials and the potential for retrials.
In conclusion, while double jeopardy generally protects individuals from being tried twice for the same offence, there are exceptions that can invalidate this protection. In the context of juvenile courts, the decision to try a minor as an adult or a juvenile has significant implications for double jeopardy, and the unique circumstances of juvenile justice can further complicate the application of this legal principle.
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Double jeopardy in other countries
Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same or similar charges following an acquittal or conviction. It is a common concept in criminal law, with civil law having a similar concept known as res judicata. While double jeopardy is not a principle of international law, it is recognised in various extradition treaties and in the European Union through the Schengen Convention.
Double Jeopardy in Europe
The European Convention on Human Rights, adopted by all members of the Council of Europe, includes an optional protocol that protects against double jeopardy. Specifically, Article 4 states that 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 they have already been finally acquitted or convicted. However, not all EU states have ratified this protocol, including Germany, the United Kingdom, and the Netherlands. In European common law countries, the prosecution may appeal an acquittal to a higher court, which is considered a continuation of the same case rather than double jeopardy.
Double Jeopardy in the United States
The United States provides nearly absolute double jeopardy protections through the Double Jeopardy Clause in the Fifth Amendment to the US Constitution. This clause prohibits anyone from being prosecuted twice for substantially the same crime. Notably, the US is the only country where the prosecution cannot appeal an acquittal in the lowest court unless the trial is declared invalid. Additionally, double jeopardy in the US only applies to the same "sovereign", meaning an individual can be convicted in multiple states if the crime occurred in multiple jurisdictions.
Double Jeopardy in Canada
In Canada, double jeopardy is recognised as a constitutional right and is covered by Section 11(h) of the Charter and common law principles. However, Section 11(h) does not apply when the same crime is prosecuted in different countries. Canada interprets a single act as multiple crimes, allowing for different sovereigns to try an individual for distinct offences arising from the same conduct.
Double Jeopardy in Other Jurisdictions
In many other jurisdictions, double jeopardy is not an absolute protection and may be invalidated under certain circumstances. For example, in Australia, double jeopardy law does not prevent prosecution for perjury following an acquittal. Additionally, in Scotland, a new trial can be initiated if the acquitted individual makes a credible admission of guilt. Similarly, in England, Wales, and Northern Ireland, serious offences may be retried following an acquittal if new and compelling evidence is found and if it is in the public interest.
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Frequently asked questions
The law of double jeopardy is a procedural defence that prevents an accused person from being tried again on the same or similar charges following an acquittal or conviction.
Yes, in some countries, the law of double jeopardy can be invalidated. For example, in the United States, the Supreme Court ruled in 2019 that it is permissible for a person convicted or acquitted of a crime in a state court to be subsequently prosecuted and convicted federally for the same offence. This is known as the dual sovereignty doctrine.
Yes, there are a few exceptions to the law of double jeopardy. For example, in many European countries, the prosecution may appeal an acquittal to a higher court without violating the law. In addition, double jeopardy does not apply to prosecutions for lesser included offences if the defendant has already defeated the charge of a more serious offence.
The law of double jeopardy appears to have originated in ancient Roman law, with the principle of "non bis in idem", which means "not twice against the same".
