Anaya Nolan
Double jeopardy is a procedural defence in criminal law that prevents an accused person from being tried again for the same or similar charges following an acquittal or conviction. The concept appears to have originated in ancient Roman law, with the principle non bis in idem (not twice against the same). In the United States, the Fifth Amendment to the US Constitution includes the Double Jeopardy Clause, which prohibits anyone from being prosecuted twice for the same crime. While it originally applied only to the federal government, the Supreme Court has since incorporated it against the states. Similar protections exist in other countries, such as Canada and Mexico, where it is a constitutional right, and in the UK, where it has been part of English law for over 800 years.
| Characteristics | Values |
|---|---|
| Origin | Ancient Roman law |
| Principle | Non bis in idem ('not twice against the same') |
| Application | Common law jurisdictions |
| Exceptions | Scotland, some European countries, the United States |
| Example | If an individual steals a car and is found not guilty, they can be charged for stealing a car again |
| US Constitution | Double Jeopardy Clause in the Fifth Amendment |
| Purpose | Protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense |
| Current Application | Applies to both federal and state governments in the US |
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What You'll Learn
Double jeopardy in the US Constitution
Double jeopardy is a procedural defence in criminal law that prevents an accused person from being tried again for 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. The protection offered by the double jeopardy rule bars an identical prosecution for the same offence, but a different offence may be charged based on identical evidence in a second trial.
In the US, the Double Jeopardy Clause in the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for the same crime. The Fifth Amendment states:
> No person shall... be subject for the same offence to be twice put in jeopardy of life or limb...
The Double Jeopardy Clause originally applied only to the federal government, but through the incorporation doctrine, the Supreme Court has incorporated certain amendments and clauses against the states. In Benton v. Maryland, the Supreme Court incorporated the Double Jeopardy Clause against the states, concluding that the double jeopardy prohibition "represents a fundamental ideal in our constitutional heritage".
The "dual sovereignty" doctrine recognises that the state where the crime was committed and the federal government are independent of each other, and they can each separately punish an individual for the same illegal conduct. This means that if a person is found not guilty at the state level, they can still be tried for the same crime at the federal level, and vice versa. This interpretation of the Double Jeopardy Clause has been controversial within the legal academy, with some arguing that it is contrary to the original intent of the clause.
While the Double Jeopardy Clause provides important protections against multiple prosecutions and convictions for the same offence, it does not cover every sanction. Typically, only sanctions that can be considered "punishment" qualify under the rule. Additionally, in some cases, new and compelling evidence may lead to a retrial, which is an exception to the Double Jeopardy Clause.
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Double jeopardy in international law
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.
Double jeopardy is not a principle of international law. It does not apply between different countries unless contractually agreed upon between those countries. For example, in the European Union (Article 54 of the Schengen Convention) and in various extradition treaties between two countries.
The International Covenant on Civil and Political Rights, signed by 72 countries and parties to 166 more, includes the following 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."
However, this does not apply to prosecutions by two different sovereigns unless the relevant extradition treaty prohibits it. The European Convention on Human Rights, adopted by all members of the Council of Europe, includes Protocol No. 7, which protects against double jeopardy:
> "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."
In some countries, certain exemptions are permitted. For example, in Scotland, a new trial can be initiated if the acquitted has made a credible admission of guilt. In the United States, the Double Jeopardy Clause in the Fifth Amendment prohibits anyone from being prosecuted twice for substantially the same crime.
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Double jeopardy in common law
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 that of res judicata. The double jeopardy protection in criminal prosecutions bars only an identical prosecution for the same offence. However, a different offence may be charged on identical evidence at a second trial.
The concept of double jeopardy appears to have originated in ancient Roman law, in the broader principle non bis in idem ('not twice against the same'). In common law countries, a defendant may enter a peremptory plea of autrefois acquit ('previously acquitted') or autrefois convict ('previously convicted'), with the same effect. Double jeopardy is not a principle of international law and does not apply between different countries unless contractually agreed upon. For example, in the European Union (Art. 54 Schengen Convention) and in various extradition treaties between two countries, double jeopardy is agreed upon.
In some countries, including Canada, Mexico, and the United States, the guarantee against being "twice put in jeopardy" is a constitutional right. In the US, the Fifth Amendment to the US Constitution prohibits anyone from being prosecuted twice for substantially the same crime. The Double Jeopardy Clause in the Fifth Amendment states:
> No person shall [...] be subject for the same offense to be twice put in jeopardy of life or limb [...]
In England, Wales and Northern Ireland, double jeopardy was partially abolished 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 retrial is found to be in the public's interest. In Scotland, the Double Jeopardy (Scotland) Act 2011 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 their guilt after acquittal; and where there was new evidence.
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Double jeopardy in film and TV
Double jeopardy is a legal concept that has been sensationalized in film and TV. The procedural defence, though real, is often portrayed in a much more simplified manner in media.
The 1999 crime thriller film "Double Jeopardy", starring Ashley Judd, Tommy Lee Jones, Bruce Greenwood, and Annabeth Gish, is a prime example of this. The film's plot hinges on the idea that the Double Jeopardy Clause gives someone immunity to commit a subsequent crime after being wrongfully convicted. In the film, Elizabeth "Libby" Parsons (Judd) is framed by her husband, Nick (Greenwood), for his murder and serves prison time. When she is paroled, she hunts him down and claims that she could kill him and get away with it due to double jeopardy. However, as some reviews of the film pointed out, this interpretation of the law is inaccurate. While Libby was convicted of "murdering" Nick at a specific time and place, hunting him down in another city and killing him there would constitute a new crime for which she could be justly convicted.
The film "Double Jeopardy" is not the only instance of the concept in media. There have been several other films and TV episodes with "Double Jeopardy" in their titles, including a 1992 TV movie starring Rachel Ward and Bruce Boxleitner, a 1996 episode of "Beast Wars", and episodes of "CSI: Miami" (2006), "The Good Wife" (2010), "Haven" (2012), and many others.
The Law Offices of Douglas R. Beam, P.A., also explores the topic of double jeopardy in film and TV through its podcast "Good Questions for Bad Days". In one episode, they discuss the film "Double Jeopardy" starring Ashley Judd and Tommy Lee Jones, as well as the accuracy of the legal concept portrayed in the movie.
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Double jeopardy exceptions
Double jeopardy is a procedural defence that prevents an accused person from being tried again for the same or similar charges following an acquittal or conviction. While it is a constitutional right in some countries, it is afforded by statute in others.
Exceptions to Double Jeopardy
- Criminal vs Civil Cases: Double jeopardy applies only to criminal cases. If a person is acquitted in a criminal court, they can still be brought to trial in a civil court based on the same actions.
- State and Federal Law: If a person commits a crime that violates both state and federal law, they can be tried for the same crime in state court and federal court, regardless of the outcome of the first trial.
- Mistrials: If a trial ends in a mistrial, there are many circumstances in which a person can be retried. For example, if a mistrial is declared on procedural grounds, a retrial is usually permitted.
- Hung Jury: If a jury cannot reach a unanimous decision, the defendant can be retried for the same crime.
- New Evidence: In some countries, new and compelling evidence may warrant a retrial following an acquittal.
- Insanity Defence: A defendant acquitted by reason of mental illness can be retried if they are later found to be sane.
- Admission of Guilt: In some jurisdictions, an acquitted person who makes a credible admission of guilt can be retried.
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Frequently asked questions
Double jeopardy is a procedural defence that prevents an accused person from being tried again for the same crime after an acquittal or conviction.
The concept of double jeopardy appears to have originated in ancient Roman law, with the principle of 'non bis in idem' ('not twice against the same').
Yes, double jeopardy is a law in the United States, as part of the Fifth Amendment to the US Constitution.
The Double Jeopardy Clause in the Fifth Amendment prohibits anyone from being prosecuted twice for the same crime.
Only sanctions that can be considered "punishment" qualify under the rule.
