The Evolution Of Double Jeopardy Law

Double jeopardy is a procedural defence that prevents an accused person from being tried again for the same offence following an acquittal or conviction. The double jeopardy clause in the U.S. Constitution's Fifth Amendment states, No person shall...be subject for the same offence to be twice put in jeopardy of life or limb. This right is also guaranteed by most state constitutions. The concept of double jeopardy is one of the oldest in Western civilisation, with its roots in ancient Greece and Rome. In England, the protection against double jeopardy was considered a universal maxim of the common law and was embraced by eminent jurists such as Henry de Bracton, Sir Edward Coke, Sir Matthew Hale, and Sir William Blackstone. The American colonists expanded this protection, making it applicable to all crimes. In 2003, the Criminal Justice Act partially abolished double jeopardy in England, Wales, and Northern Ireland, allowing for retrials in certain limited circumstances.

Double jeopardy in the US Constitution's Fifth Amendment

The Fifth Amendment to the US Constitution, passed by Congress on September 25, 1789, and ratified on December 15, 1791, contains the Double Jeopardy Clause, which states:

> "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb".

The Double Jeopardy Clause is a fundamental right that prevents the federal government from prosecuting individuals more than once for a single offense, or imposing multiple punishments for a single crime. It is a procedural defence that prevents an accused person from being tried again on the same or similar charges following an acquittal or conviction, and in rare cases, prosecutorial and/or judge misconduct in the same jurisdiction.

The Fifth Amendment's Double Jeopardy Clause applies to criminal cases only and not to civil or administrative proceedings. It is designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. The underlying idea is that the state, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting them to embarrassment, expense, and ordeal, and compelling them to live in a continuing state of anxiety and insecurity.

The concept of double jeopardy has a long history, with its development being uneven and its meaning varying over time. It can be traced back to ancient Roman law, with the broader principle of "non bis in idem" ("not twice against the same"). In Roman criminal law, if a judge or magistrate acquitted a criminal defendant, further proceedings "of any kind" were barred against them. Roman law also contained a maxim that translates to "no one ought to be punished twice for the same offense", which was later codified in the Digest of Justinian.

The English common law also embraced the protection against double jeopardy, with eminent jurists such as Henry de Bracton, Sir Edward Coke, Sir Matthew Hale, and Sir William Blackstone espousing it. However, the English double jeopardy doctrine was narrow in scope, only affording protection to defendants accused of capital felonies and applying only after a conviction or acquittal. It did not apply to cases dismissed before the final judgment and was not immune to abuse by the British Crown.

The American colonists were familiar with the writings of these jurists and used them to support their claims against the English Parliament. During the Constitutional Convention after the Revolutionary War, James Madison sought to expand the scope of double jeopardy and make it applicable to all crimes, not just capital felonies. The final version of the Fifth Amendment, as ratified by the states, left some questions open for judicial interpretation.

Today, the prohibition against double jeopardy protects a criminal defendant from prosecution for the same criminal offense after an acquittal, a second prosecution for the same criminal offense after a conviction, prosecution after certain mistrials, and facing more than one punishment for a single offense. The attachment of jeopardy typically occurs when the court swears in the jurors in a criminal jury trial or when the prosecution calls their first witness in a bench trial.

The Supreme Court has clarified the meaning of a "single offense" for double jeopardy purposes, establishing the "same elements" test, which applies when the government charges a defendant with two or more criminal offenses. Double jeopardy does not protect the defendant if each offense requires the government to prove an additional fact not found in the other offense.

While the Double Jeopardy Clause applies to state proceedings via the Fourteenth Amendment, there is a key exception known as the dual sovereignty doctrine. This doctrine allows multiple sovereigns to indict a defendant for the same crime, as the federal and state governments can have overlapping criminal laws. Thus, a criminal offender may be convicted in individual states and federal courts for the same crime or for different crimes arising out of the same facts.

Double jeopardy in England

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. In England, the protection against double jeopardy was a universal maxim, and it has been a part of English common law for over 800 years.

The English double jeopardy doctrine, however, was extremely narrow. It only afforded protection to defendants accused of capital felonies and applied only after a conviction or acquittal. It did not apply to cases dismissed before the final judgment and was not immune to abuse by the British Crown. Eminent jurists such as Henry de Bracton, Sir Edward Coke, Sir Matthew Hale, and Sir William Blackstone embraced this doctrine. Blackstone wrote in the Commentaries that:

> [t]he plea of autrefois acquit ... is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence.

The English law preserved the double jeopardy rule until it was partially abolished by the Criminal Justice Act of 2003 (CJA). The change was made due to advances in forensic science and the ability to use modern DNA analysis to adduce evidence. Now, in certain limited circumstances, a person who was acquitted of a crime can be investigated and put on trial again if there is compelling new evidence.

Double jeopardy in the American colonies

The American colonists were well-versed in the writings of Bracton, Coke, and Hale. Copies of Blackstone's Commentaries on English Law were available in most colonies, and the colonists often quoted his teachings to support their claims against the English Parliament. Blackstone wrote that the protection against double jeopardy was a "universal maxim" of English common law.

The colonists were also aware of how limited the right against double jeopardy was in England. During the Constitutional Convention, James Madison sought to broaden the definition by making the right against double jeopardy applicable to all crimes, not just capital felonies. However, some perceived Madison's original draft of the Double Jeopardy Clause as too broad. It stated, "No person shall be subject...to more than one punishment or one trial for the same offense." Several House members objected to this wording, arguing that it could be interpreted to prevent defendants from seeking a second trial on appeal following a conviction.

The Framers modified the Fifth Amendment's language to address this concern, but the final version ratified by the states left other questions for judicial interpretation. The double jeopardy clause in the Fifth Amendment to the U.S. Constitution now states, "No person shall...be subject for the same offence to be twice put in jeopardy of life or limb." This fundamental right prevents the federal government from prosecuting individuals more than once for a single offense and from imposing multiple punishments for a single crime.

The partial abolishment of double jeopardy in England, Wales and Northern Ireland

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 has been a part of English law for over 800 years. However, in 2003, the Criminal Justice Act partially abolished double jeopardy in England, Wales and Northern Ireland. This means that in certain limited circumstances, a person who was acquitted of a crime can now be investigated and put on trial once more.

The partial abolishment of double jeopardy in these jurisdictions was driven by several factors, including the development of DNA evidence. The ability to match traces found at a crime scene to a specific individual has had a significant impact on criminal cases. In some instances, people who were convicted of crimes later had their innocence proven through DNA evidence, while others had been acquitted before DNA evidence that could prove their guilt became available. This raised the question of whether it was just for those with compelling new evidence of their guilt to avoid prosecution.

The Criminal Justice Act 2003, which came into force in April 2005, introduced exceptions to the double jeopardy rule for certain serious crimes, including murder, manslaughter, kidnapping, rape, armed robbery, and serious drug crimes. Under this new legislation, a retrial can occur if the following conditions are met:

• The retrial must be approved by the Director of Public Prosecutions (DPP).
• The Court of Appeal must agree to quash the original acquittal due to "new and compelling evidence".
• The Court of Appeal must also find that a retrial is in the public interest.

It is important to note that these stringent safeguards are in place to prevent the persecution of suspects who have already been acquitted and to ensure that prosecutors do not abuse the new law. Additionally, the new rules allow guilty individuals to be brought to justice, providing closure to victims or their families.

Since the partial abolishment of double jeopardy in England, Wales and Northern Ireland, there have only been a handful of prosecutions brought under the new law. The first was William Dunlop, who pleaded guilty in 2006 to the murder of Julie Hogg after confessing to the crime in 1999. Other cases include the convictions of Mario Celaire for the murder of his ex-girlfriend, Cassandra McDermott, and Wendell Baker for the 1997 rape of a 66-year-old woman.

The development of DNA evidence

The use of DNA as a material for identifying individuals began in the mid-1970s. The first patent covering the direct use of DNA variation for forensics was filed by Jeffrey Glassberg in 1983, based on work he had done at Rockefeller University in the United States in 1981. However, it was British geneticist Sir Alec Jeffreys who independently developed a process for DNA profiling in 1984 while working at the University of Leicester. Jeffreys discovered that a DNA examiner could establish patterns in unknown DNA, which could be used to advance relationship analysis.

The process was first used forensically in 1986 in the solving of the murder of two teenagers in Leicestershire, UK, in 1983 and 1986. The DNA contained within blood samples obtained from around 5,000 local men was used to rule out an initial suspect and eventually convict Colin Pitchfork. This was the first successful outcome of DNA profiling in a criminal case, establishing it as a valuable tool for solving crimes.

In the same year, DNA profiling was used in the US for the first time in the trial of a man accused of unlawful intercourse with a mentally disabled 14-year-old female who gave birth to a baby. In 1987, Tommie Lee Andrews became the first person in the US to be convicted as a result of DNA evidence, for raping a woman during a burglary.

The development of DNA profiling continued with the introduction of the polymerase chain reaction (PCR) technique, which allowed for the analysis of small amounts of DNA from archival and partially degraded samples. By the end of 1986, DNA profiling was being used all over the world.

In 1994, the DNA Identification Act authorized the FBI to expand a pilot project into a national DNA database, the Combined DNA Index System (CODIS), as a tool for solving violent crimes. The database combines DNA analysis with computer technology to enable crime laboratories at the local, state, and national levels to exchange and compare DNA profiles electronically.

Today, DNA evidence is widely used in the field of forensics and paternity identification, as well as in criminal investigations to compare criminal suspects' profiles to DNA evidence and assess the likelihood of their involvement in a crime. It is also used in sexual assault cases, homicides, robberies, and other violent crimes, as well as property crimes.

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