Jonah Patel
Double jeopardy is a legal concept that prohibits prosecuting a person more than once for the same offence. It is a fundamental right guaranteed by the constitutions of several countries, including Canada, Mexico, the United States, India, Japan, Serbia, South Africa, and South Korea. In the US, the Fifth Amendment states that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. The concept of double jeopardy has a long history, but its development and meaning have varied over time. The first bill of rights to expressly adopt a double jeopardy clause was the New Hampshire Constitution of 1784, which stated that no subject shall be liable to be tried for the same crime after an acquittal.
| Characteristics | Values |
|---|---|
| Definition | Double jeopardy refers to prosecuting a person more than once for the same offense. |
| Purpose | To protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. |
| History | The concept of double jeopardy goes far back in history, but its development was uneven and its meaning has varied. |
| Constitutional Origin | The Double Jeopardy Clause is part of the Fifth Amendment to the United States Constitution. |
| Application | Applies to both state and federal governments due to the incorporation doctrine established by the Supreme Court. |
| Exceptions | In some countries, certain exemptions are permitted, such as allowing a new trial if new and compelling evidence is found or in the public interest. |
| International Recognition | Recognized as a fundamental right in the constitutions of countries like India, Japan, South Africa, and South Korea. |
| Case Law | Notable cases include Breed v. Jones, United States v. Ursery, United States v. Lara, Blockburger v. United States, and others. |
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What You'll Learn
Double jeopardy as a procedural defence
Double jeopardy is a procedural defence that protects individuals from being prosecuted multiple times for the same offence. The Fifth Amendment to the United States Constitution states:
> "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...".
The concept of double jeopardy is deeply rooted in the Anglo-American legal system, aiming to prevent the state from utilising its vast resources and power to subject an individual to repeated trials and the possibility of conviction for the same offence. This safeguards individuals from the financial and emotional burden of enduring multiple trials, as well as reducing the likelihood of erroneous convictions.
The inclusion of the Double Jeopardy Clause in the Fifth Amendment was not initially considered a fundamental right, as seen in the case of Palko v. Connecticut, where the Court rejected the argument that the Fourteenth Amendment incorporated all provisions of the first eight Amendments as limitations on the states. However, over time, the importance of the Double Jeopardy Clause has been elevated, and it is now recognised as a vital protection in criminal proceedings.
The interpretation and application of double jeopardy have evolved, with some exceptions and nuances to its implementation. For instance, in the United States, the Supreme Court has ruled that prosecution by two separate sovereigns for the same conduct does not constitute double jeopardy, as seen in United States v. Lanza and United States v. Lara. Additionally, the Blockburger test, established in Blockburger v. United States (1932), allows the government to separately try and punish an individual for two crimes if each crime contains unique elements.
The scope of double jeopardy also varies internationally. For example, in Canada, Mexico, and the United States, protection against double jeopardy is a constitutional right. In India, partial protection against double jeopardy is guaranteed under the Constitution, while full protection is provided by the Code of Criminal Procedure. The concept is also incorporated into the constitutions of Serbia, South Africa, and South Korea, among others.
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The Fifth Amendment and double jeopardy
The Fifth Amendment to the United States Constitution contains a provision known as the Double Jeopardy Clause, which states that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb". This clause is designed to protect individuals from being subjected to multiple trials and convictions for the same alleged offence, shielding them from the embarrassment, expense, and anxiety of repeated prosecutions.
The concept of double jeopardy has a long history, with its roots in the Anglo-American system of jurisprudence. Its inclusion in the Fifth Amendment was influenced by the New Hampshire Constitution of 1784, which first adopted a double jeopardy clause, and the Pennsylvania Declaration of Rights of 1790, which featured language almost identical to the Fifth Amendment. The Double Jeopardy Clause was further developed through significant court cases such as United States v. Lanza, where the conviction of an individual in both state and federal courts for the same actions was upheld due to the concept of "dual sovereignty".
The application of the Double Jeopardy Clause has been nuanced, with several exceptions and interpretations over time. For instance, it does not prohibit prosecution by different sovereigns, such as the federal government and an Indian tribe, for the same actions that constitute crimes in both jurisdictions. The Supreme Court has also clarified that double jeopardy does not apply to civil cases or when new and compelling evidence is discovered. Additionally, the clause does not prevent prosecution for different instances of the same type of offence, such as car theft, or for violating additional laws during the same incident.
The Fifth Amendment's Double Jeopardy Clause has been a fundamental aspect of the US constitutional heritage, ensuring fairness and finality in the justice system. It has been incorporated into the constitutions of various states and has influenced legal systems worldwide, including in Canada, Mexico, India, Japan, South Africa, and South Korea, which have their own provisions against double jeopardy.
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The 'dual sovereignty' doctrine
The dual sovereignty doctrine is an exception to the double jeopardy rule. The Fifth Amendment to the United States Constitution states:
> "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The dual sovereignty doctrine permits successive prosecutions by two states for the same conduct. For example, an individual can be prosecuted by both the United States and an Indian tribe for the same acts that constituted crimes in both jurisdictions. This is because, as separate sovereigns, prosecuting a crime under both tribal and federal law does not constitute double jeopardy.
In United States v. Lanza, the conviction in federal court of a person previously convicted in a state court for the same acts was upheld. The Court stated that there are "two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory".
The dual sovereignty doctrine also applies to a federal prosecution after a conviction in an Indian tribal court for an offence stemming from the same conduct. However, when two different units of the government are subject to the same sovereign, the Double Jeopardy Clause does bar separate prosecutions by them for the same offence.
The concept of double jeopardy is deeply ingrained in the Anglo-American system of jurisprudence. It is designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offence. It also preserves the finality of judgments.
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Double jeopardy in common law countries
Double jeopardy is a legal concept that protects individuals from being prosecuted multiple times for the same offence. The principle is designed to protect individuals from the stress and potential conviction that could result from repeated attempts by the state to convict them for an alleged offence. It also preserves the finality of judgments. The concept of double jeopardy has existed for a long time, but its development has been uneven and its meaning has varied.
In common law countries, the protection against double jeopardy is a fundamental right. For example, in Canada, Mexico, and the United States, the guarantee against being "twice put in jeopardy" is a constitutional right. The Fifth Amendment to the United States Constitution explicitly prohibits double jeopardy, stating that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb". Many states in the US have also codified similar prohibitions on double jeopardy into their constitutions.
The Indian Constitution provides a partial protection against double jeopardy under Article 20 (2), which states that " [n]o person shall be prosecuted and punished for the same offence more than once". This provision enshrines the concept of 'autrefois convict', meaning that no one convicted of an offence can be tried or punished a second time. However, it does not extend to 'autrefois acquit', so if a person is acquitted of a crime, they can be retried. In India, protection against 'autrefois acquit' is a statutory right provided by the Code of Criminal Procedure rather than the Constitution.
The Constitution of Japan, which came into effect on 3 May 1947, includes a provision against double jeopardy in Article 39, stating that " [n]o 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".
Double jeopardy is also incorporated into the Constitution of the Republic of Serbia and further elaborated in its Criminal Procedure Act. The South African Constitution's Bill of Rights forbids a retrial when there has already been an acquittal or conviction. Article 13 of the South Korean constitution also provides that no citizen shall be placed in double jeopardy.
In England and Wales, double jeopardy has been permitted in certain exceptional circumstances since the Criminal Justice Act 2003. Serious offences may be retried following an acquittal if new and compelling evidence is found and if the retrial is deemed to be in the public's interest.
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The history of double jeopardy
The concept of double jeopardy, a fundamental legal principle, is rooted in English common law and has evolved over centuries. The term refers to the idea that a person should not be tried twice for the same offence, providing protection against multiple prosecutions for the same crime. The origins of this principle can be traced back to ancient legal codes, such as the Bible's provision in Deuteronomy 19:15, which states, "One witness shall not rise against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established." This biblical passage influenced early legal systems, including those of the ancient Greeks and Romans, who recognized the importance of preventing unjust multiple prosecutions.
In England, the common law principle of double jeopardy emerged during the medieval period. The Magna Carta, signed in 1215, while not directly addressing double jeopardy, emphasized the importance of legal protections for individuals, including the right to a fair trial and freedom from arbitrary imprisonment. Over time, the concept of double jeopardy became more defined and established in the English legal system. The common law principle held that a person could not be tried twice for the 'same offence', which was understood to mean the same act or transaction, regardless of whether the charges or prosecution were different.
The constitutional origins of double jeopardy in the United States can be traced back to the Fifth Amendment of the US Constitution, which states, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." This amendment was ratified in 1791, and it provides a clear protection against double jeopardy at the federal level. The Founding Fathers of the United States considered this principle essential for safeguarding individuals against abusive or vindictive prosecutions by the government.
Over time, the interpretation and application of double jeopardy have evolved. In the 19th century, the US Supreme Court clarified that the protection against double jeopardy applied not only to subsequent prosecutions but also to multiple punishments for the same offence. This interpretation has been crucial in preventing excessive penalties and ensuring proportionality in sentencing. However, there have also been exceptions and limitations to the principle of double jeopardy recognized by the courts. For example, the separate sovereigns doctrine allows for both state and federal governments to bring charges for the same act, as they are considered separate sovereign entities.
Today, the principle of double jeopardy continues to be a vital aspect of criminal justice systems, although it is not without its controversies and ongoing debates. While it provides essential protections for individuals, there are also challenges and exceptions that have emerged, such as addressing cases of new evidence or procedural errors, which may require a re-examination of a case without violating the principles of double jeopardy.
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Frequently asked questions
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 of double jeopardy goes back many years, but its development was uneven and its meaning has varied. The first bill of rights that expressly adopted a double jeopardy clause was the New Hampshire Constitution of 1784.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb".
In the United States, an individual can be prosecuted by both the United States and an Indian tribe for the same acts that constitute crimes in both jurisdictions.
Many countries, including Canada, Mexico, the United States, India, Japan, Serbia, South Africa, South Korea, and Australia, have double jeopardy laws.
