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Can People Be Trialed Again With New Evidence

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Legal defence

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

Availability equally a legal defence [edit]

If a double-jeopardy issue is raised, evidence will exist placed before the court, which will typically rule every bit a preliminary thing whether the plea is substantiated; if it is, the projected trial will be prevented from proceeding. In some countries certain exemptions are permitted. In Scotland a new trial tin be initiated if, for example, the acquitted has fabricated a apparent admission of guilt. Part of English police for over 800 years, it was partially abolished in England, Wales and Northern Ireland by the Criminal Justice Act 2003 where, post-obit demand for alter, serious offences may be re-tried following an amortization if new and compelling prove is institute and for the trial to be in the public's interest.[iii] In some countries, including Canada, Mexico, and the United States, the guarantee confronting being "twice put in jeopardy" is a constitutional correct.[four] [5] In other countries, the protection is afforded by statute.[a]

In common law countries, a defendant may enter a peremptory plea of autrefois acquit ('previously acquitted') or autrefois captive ('previously bedevilled'), with the same consequence.[vii] [b]

Double jeopardy is not a principle of international law. It does not utilize betwixt different countries, unless having been contractually agreed on between those countries as, for instance, in the European Wedlock (Art. 54 Schengen Convention), and in various extradition treaties between two 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, under Commodity fourteen (7): "No 1 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 constabulary and penal procedure of each country." However, information technology does not 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 Quango of Europe (which includes near all European countries and every member of the European Wedlock) accept adopted the European Convention on Human Rights.[9] The optional Protocol No. seven to the convention, Article 4, protects against double jeopardy: "No ane 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 constabulary and penal process of that State."[x]

All Eu states ratified this optional protocol except for Federal republic of 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, withal, implement legislation which allows reopening of a instance if new evidence is found or if there was a key defect in the previous proceedings:[x]

The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal process of the State concerned, if there is evidence of new or newly discovered facts, or if in that location has been a fundamental defect in the previous proceedings, which could affect the event of the case.

In many European countries, the prosecution may entreatment an acquittal to a college court.[ commendation needed ] This is non regarded as double jeopardy, but every bit a continuation of the aforementioned case. The European Convention on Human 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 mutual law nations, Australian double jeopardy constabulary has been held to further prevent the prosecution for perjury post-obit a previous acquittal where a finding of perjury would controvert the amortization. This was confirmed in the case of R 5 Carroll, where the law plant new testify convincingly disproving Carroll'due south sworn alibi two decades after he had been acquitted of murder charges in the decease 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 police 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 state to innovate it. All states take now chosen to introduce legislation that mirrors COAG's recommendations on "fresh and compelling" bear witness.

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

  • an amortization of a "life sentence offence" (murder, violent gang rape, large commercial supply or production of illegal drugs) is debunked by "fresh and compelling" bear witness of guilt;
  • an acquittal of a "15 years or more sentence offence" was tainted (by perjury, bribery, or perversion of the grade of justice).

On thirty July 2008, S Australia too introduced legislation to flake parts of its double jeopardy constabulary, legalising retrials for serious offences with "fresh and compelling" evidence, or if the acquittal was tainted.[14]

In Western Australia, amendments introduced on 8 September 2011 allow retrial if "new and compelling" prove is found. It applies to serious offences where the penalty was life imprisonment or imprisonment for xiv years or more. Amortization because of tainting (witness intimidation, jury tampering, or perjury) also permits retrial.[15] [16]

In Tasmania, on 19 August 2008, amendments were introduced to permit retrial in serious cases if at that place is "fresh and compelling" evidence.[17]

In Victoria on 21 December 2011, legislation was passed allowing new trials where there is "fresh and compelling DNA prove, where the person acquitted subsequently admits to the crime, or where it becomes clear that central witnesses have given false bear witness".[12] Even so, retrial applications could only be fabricated for serious offences such every bit murder, manslaughter, arson causing decease, serious drug offences and aggravated forms of rape and armed robbery.[18]

In Queensland on xviii October 2007, the double jeopardy laws were modified to let a retrial where fresh and compelling evidence becomes available after an amortization for murder or a "tainted acquittal" for a crime conveying a 25-year or more judgement. A "tainted amortization" requires a conviction for an administration of justice offence, such as perjury, that led to the original amortization. Dissimilar reforms in the United kingdom, New South Wales, Tasmania, Victoria, South Commonwealth of australia and Western Australia, this law does not have a retrospective outcome, which is unpopular with some advocates of the reform.[19]

Canada [edit]

The Canadian Lease of Rights and Freedoms includes provisions such as section 11(h) prohibiting double jeopardy. Yet, the prohibition only applies afterward an accused person has been "finally" convicted or acquitted. Canadian law allows the prosecution to appeal an acquittal. If the amortization is thrown out, the new trial is not considered to be double jeopardy since the verdict of the offset trial is annulled. In rare circumstances, a courtroom of appeal might also substitute an acquittal for a conviction. That is not considered double jeopardy since the appeal and the subsequent confidence are and then accounted to be a continuation of the original trial.

For an appeal from an acquittal to be successful, the Supreme Courtroom of Canada requires the Crown to show that an error in law was made during the trial and that it contributed to the verdict. It has been argued that this test is unfairly beneficial to the prosecution. For instance, in his book My Life in Crime and Other Bookish Adventures, Martin Friedland contends that the rule should exist changed and so that a retrial is granted only when the error is shown to exist responsible for the verdict, not merely a factor.

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

In the Guy Turcotte case, for instance, the Quebec Court of Entreatment overturned Turcotte's not criminally responsible verdict and ordered a second trial after it institute that the judge committed an error in the outset trial while instructions were given to the jury. Turcotte was later convicted of 2d-caste murder in the second trial.

France [edit]

One time all appeals have been exhausted on a example, the judgement is final and the action of the prosecution is closed (code of penal procedure, art. 6), except if the final ruling was forged.[20] Prosecution for a law-breaking already judged is impossible fifty-fifty if incriminating bear witness has been found. However, a person who has been bedevilled may request some other trial on the grounds of new exculpating bear witness through a procedure known as révision.[21].

French law allows the prosecution to appeal an acquittal.

Frg [edit]

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

Nobody shall exist punished multiple times for the same crime on the basis of general criminal constabulary.

—Art. 103 (3) GG[22] [23]

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

If ane of the parties disagrees with the 2nd case's judgement, they can entreatment it just for formal judicial reasons. The case volition be checked in the tertiary instance (Revisionsgericht), whether all laws are practical correctly.

The rule applies to the whole "historical consequence, which is ordinarily considered a single historical course of actions the separation of which would seem unnatural". This is true even if new facts occur that point other crimes.

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

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

  1. if a document that was considered accurate during the trial was actually not authentic or forged,
  2. if a witness or authorised expert wilfully or negligently made a wrong deposition or wilfully gave a wrong uncomplicated testimony,
  3. if a professional or lay judge, who fabricated the decision, had committed a crime by violating his or her duties as a judge in the example
  4. if an acquitted accused makes a credible confession in court or out of court.

    —§ 362 StPO

In the case of an social club of summary penalization, which can exist issued past the court without a trial for lesser misdemeanours, there is a further exception:

A retrial not in favour of the defendant is also permissible if the defendant has been convicted in a terminal lodge of summary penalization and new facts or testify accept been brought forrard, which institute grounds for a conviction of a felony by themselves or in combination with earlier evidence.

—§ 373a StPO

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

India [edit]

A partial protection against double jeopardy is a Cardinal Right guaranteed under Article xx (2) of the Constitution of India, which states "No person shall be prosecuted and punished for the same offence more in one case".[24] This provision enshrines the concept of autrefois convict, that no one bedevilled of an offence can be tried or punished a 2d fourth dimension. Nonetheless, information technology does not extend to autrefois acquit, and then if a person is acquitted of a crime he can be retried. In India, protection against autrefois acquit is a statutory right, non a fundamental ane. Such protection is provided past provisions of the Code of Criminal Procedure rather than by the Constitution.[25]

Japan [edit]

The Constitution of Nihon, which came into effect 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.

Withal, in 1950, i defendant was plant guilty in the District Court 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 Courtroom on the grounds that the judgement 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 15 judges of the Supreme Court fabricated the Thousand Demote Decision to rule against the accused and alleged that a criminal proceeding in the District Courtroom, High Court and Supreme Court is all one case and that there 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 not impose a severe enough sentence, the defendant will not be placed in double jeopardy.

On Oct ten, 2003, the Supreme Court made a landmark conclusion in the area of double jeopardy. The case involved Article 235 of the Penal Lawmaking, which addresses "simple larceny", and Article two of the Law for Prevention and Disposition of Robbery, Theft, etc., which addresses "habitual larceny". The Courtroom ruled that in the event that there are two trials for separate cases of elementary larceny, it will not exist considered double jeopardy, even if the prosecutor could accept charged both of them every bit a single criminal offence of habitual larceny. The accused in this case had committed crimes of trespassing and simple larceny on 22 separate occasions. The defence counsel argued that the crimes were actually one offence of habitual larceny and that charging them as separate counts was double jeopardy. The Supreme Court ruled that information technology was within the prosecutor'due south discretion as to whether to charge the defendant with i count of habitual larceny or to accuse them with multiple counts of trespassing and simple larceny. In either case, information technology is not considered double jeopardy.[26] [27] [28]

The Netherlands [edit]

In the netherlands, the country prosecution can appeal a not-guilty verdict at the bench. New prove can be applied during a retrial at a district court. Thus i can be tried twice for the same declared crime. If one is convicted at the district court, the defence can make an entreatment on procedural grounds to the supreme court. The supreme court might admit this complaint, and the instance will be reopened all the same again, at another district court. Again, new bear witness might be introduced past the prosecution.

On 9 Apr 2013 the Dutch senate voted 36 "yes" versus 35 "no" in favour of a new law that allows the prosecutor to re-attempt a person who was found not guilty in courtroom. This new police force is express to crimes where someone died and new evidence must take been gathered. The new police besides works retroactively.[ citation needed ]

Pakistan [edit]

Article thirteen of the Constitution of Pakistan protects a person from being punished or prosecuted more than one time for the same offence. Section 403 of The Code of Criminal Procedure contemplates of a state of affairs where as person having once been tried past a Court of competent jurisdiction and acquitted by such court cannot be tried once again for the same offence or for any other offence based on similar facts. The telescopic of section 403 is restricted to criminal proceedings and non to civil proceedings and departmental inquiries.

Serbia [edit]

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

South Africa [edit]

The Bill of Rights in the Constitution of South Africa forbids a retrial when there has already been an acquittal or a conviction.

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

—Constitution of the Democracy of South Africa, 1996, due south. 35(iii)(yard)

Republic of korea [edit]

Article thirteen of the Due south Korean constitution provides that no citizen shall exist placed in double jeopardy.[30]

United Kingdom [edit]

England and Wales [edit]

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

Pre-2003 [edit]

The doctrines of autrefois acquit and autrefois convict persisted as role of the mutual law from the time of the Norman conquest of England; they were regarded as essential elements for protection of the subject'south freedom and respect for due process of law in that in that location should exist finality of proceedings.[7] There were only three exceptions, all relatively recent, to the rules:

  • The prosecution has a right of appeal against acquittal in summary cases if the conclusion appears to be incorrect in police force or in excess of jurisdiction.[31]
  • A retrial is permissible if the interests of justice so crave, following entreatment against conviction by a defendant.[32]
  • A "tainted acquittal", where there has been an offence of interference with, or intimidation of, a juror or witness, can exist challenged in the High Courtroom.[33]

In Connelly 5 DPP [1964] Air conditioning 1254, the Constabulary Lords ruled that a defendant could not exist tried for whatever offence arising out of substantially the same set up 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 instance constabulary on the significant of "special circumstances", only it has been suggested that the emergence of new show would suffice.[34]

A defendant who had been convicted of an offence could be given a second trial for an aggravated form of that offence if the facts constituting the aggravation were discovered afterwards the first conviction.[35] By contrast, a person who had been acquitted of a lesser offence could non be tried for an aggravated form even if new prove became available.[36]

Mail service-2003 [edit]

Post-obit the murder of Stephen Lawrence, the Macpherson Report recommended that the double jeopardy dominion should be abrogated in murder cases, and that it should be possible to subject field an acquitted murder suspect to a second trial if "fresh and feasible" new evidence later came to light. The Constabulary Commission afterward added its support to this in its report "Double Jeopardy and Prosecution Appeals" (2001). A parallel report into the criminal justice organisation by Lord Justice Auld, a past Senior Presiding Judge for England and Wales, had also commenced in 1999 and was published equally the Auld Report six months afterward the Law Commission report. It opined that the Police force Commission had been unduly 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] 1999 was besides the year of a highly-publicised example in which a human, David Smith, was bedevilled of the murder of a prostitute after having been acquitted of the "nigh identical"[38] murder of sex worker Sarah Crump half dozen years previously.[39] [38] [twoscore] Because of the double jeopardy laws that existed at the time, Smith could not exist re-tried for Crump'south murder, despite law inisting they were not looking for anybody else and that the case was closed and the BBC reporting that Smith had "vanquish" the earlier murder charge.[41] [42] [39] [38]

Both Jack Harbinger (then Home Secretary) and William Hague (then Leader of the Opposition) favoured the measures suggested by the Auld Report.[43] These recommendations were implemented—not uncontroversially at the time—within the Criminal Justice Act 2003,[44] [45] and this provision came into force in April 2005.[46] Information technology opened certain serious crimes (including murder, manslaughter, kidnapping, rape, armed robbery, and serious drug crimes) to a retrial, regardless of when committed, with ii weather: the retrial must be approved by the Manager of Public Prosecutions, and the Court of Appeal must concur to quash the original acquittal due to "new and compelling evidence".[47] And then Director of Public Prosecutions, Ken Macdonald QC, said that he expected no more than a scattering of cases to be brought in a year.[48]

Pressure past Ann Ming, the mother of 1989 murder victim Julie Hogg—whose killer, Billy Dunlop, was initially acquitted and later confessed—also contributed to the demand for legal change.[48] On 11 September 2006, Dunlop became the outset person to exist convicted of murder following a prior acquittal for the same law-breaking, in his case his 1991 acquittal of Hogg's murder. Some years later he had confessed to the crime, and was convicted of perjury, but was unable to be retried for the killing itself. The case was re-investigated in early 2005, when the new law came into effect, and his case was referred to the Court of Appeal, in November 2005, for permission for a new trial, which was granted.[48] [49] [50] Dunlop pleaded guilty to murder and was sentenced to life imprisonment, with a recommendation he serve no less than 17 years.[51]

On xiii December 2010, Mark Weston became the first person to be retried and found 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 evidence (Thompson'southward blood on Weston'due south boots) he was arrested and tried for a second time. He was sentenced to life imprisonment, to serve a minimum of thirteen years.[52]

In December 2018, convicted paedophile Russell Bishop was also retried and found guilty past a jury for the Babes in the Wood murders of two 9-year-old girls, Nicola Fellows and Karen Hadaway, on nine October 1986. At the original trial in 1987, a key piece of the prosecution's example rested on the recovery of a discarded blue sweatshirt. Under questioning, Bishop denied that the sweatshirt belonged to him, simply his girlfriend, Jennifer Johnson, declared the vesture was Bishop'south, before she changed her story in the trial, telling the jury she had never seen the top before.[53] Attributed to a series of blunders in the prosecution's case, Bishop was acquitted by the jury after two hours of deliberations.[53] Three years later, Bishop was establish guilty of the abduction, molestation, and attempted murder of a 7-year-one-time daughter in February 1990.[54] In 2014, re-examined by modern forensics, the sweatshirt independent traces of Bishop's DNA, and also had fibres on it from both of the girls' clothing.[54] Tapings taken from Karen Hadaway's arm also yielded traces of Bishop's Deoxyribonucleic acid.[54] At the 2018 trial, a jury of seven men and five women returned a guilty verdict after two-and-a-one-half hours of deliberation.[53] [54]

On fourteen November 2019, Michael Weir became the first person to be twice found 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 past the Court of Appeal on a technicality. In 2018, new DNA prove had been obtained and palm prints from both murder scenes were matched to Weir. Twenty years later on the original conviction, Weir was convicted of the murders for a 2d time.[3]

Scotland [edit]

The double jeopardy rule no longer applies admittedly in Scotland since the Double Jeopardy (Scotland) Human activity 2011 came into force on 28 November 2011. The Act introduced three broad exceptions to the rule: where the acquittal had been tainted by an attempt to pervert the class of justice; where the defendant admitted their guilt after acquittal; and where there was new bear witness.[55]

Northern Ireland [edit]

In Northern Ireland, the Criminal Justice Act 2003, effective 18 April 2005,[56] makes certain "qualifying offence" (including murder, rape, kidnapping, specified sexual acts with young children, specified drug offences, defined acts of terrorism, too equally in certain cases attempts or conspiracies to commit the foregoing)[57] subject to retrial after acquittal (including acquittals obtained before passage of the Act) if there is a finding by the Court of Appeal that in that location is "new and compelling evidence."[58]

United States [edit]

The ancient protection of the Common Police force confronting double jeopardy is maintained in its full rigour in the United States. The Fifth Amendment to the Usa Constitution provides:

... nor shall any person exist bailiwick for the aforementioned offence to be twice put in jeopardy of life or limb; ...[59]

Conversely, double jeopardy comes with a cardinal exception. Nether the multiple sovereignties doctrine, multiple sovereigns can indict a defendant for the aforementioned criminal offence. The federal and state governments can take overlapping criminal laws, then a criminal offender may be convicted in individual states and federal courts for exactly the same crime or for unlike crimes arising out of the same facts.[60] However, in 2016, the Supreme Court held that Puerto Rico is not a separate sovereign for purposes of the Double Jeopardy Clause.[61] The dual sovereignty doctrine has been the subject of substantial scholarly criticism.[62]

Equally described by the U.S. Supreme Courtroom in its unanimous decision concerning Ball five. United states 163 U.Southward. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is non against beingness twice punished, merely confronting being twice put in jeopardy; and the accused, whether convicted or acquitted, is as put in jeopardy at the outset trial."[63] The Double Jeopardy Clause encompasses four singled-out prohibitions: subsequent prosecution afterward acquittal, subsequent prosecution later on confidence, subsequent prosecution later certain mistrials, and multiple penalisation in the aforementioned indictment.[64] Jeopardy "attaches" when the jury is impanelled, the showtime witness is sworn, or a plea is accepted.[65]

Prosecution afterwards acquittal [edit]

With 2 exceptions, the government is non permitted to entreatment or retry the defendant once jeopardy attaches to a trial unless the case does not conclude. Conditions which constitute "conclusion" of a case include

  • After the entry of an acquittal, whether:
    • a directed verdict before the case is submitted to the jury,[66] [67]
    • a directed verdict after a deadlocked jury,[68]
    • an appellate reversal for sufficiency (except by direct appeal to a higher appellate court),[69] or
    • an "implied acquittal" via confidence of a bottom included offence.[70]
  • re-litigating against the same defense a fact necessarily found by the jury in a prior amortization,[71] even if the jury hung on other counts.[72] In such a situation, the authorities is barred past collateral estoppel.

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

This principle does not preclude the government from appealing a pre-trial motility to dismiss[73] or other not-merits dismissal,[74] or a directed verdict after a jury conviction,[75] nor does it prevent the trial approximate from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has and so provided past dominion or statute.[76] Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency,[77] including habeas corpus,[78] or "thirteenth juror" appellate reversals notwithstanding sufficiency[79] on the principle that jeopardy has not "terminated".

The "dual sovereignty" doctrine allows a federal prosecution of an offence to keep regardless of a previous land prosecution for that same offence[80] and vice versa[81] because "an act denounced as a crime by both national and state sovereignties is an offence against the peace and nobility of both and may be punished past each".[82] The doctrine is solidly entrenched in the police force, but in that location has been a traditional reluctance in the federal executive branch to gratuitously wield the ability it grants, due to public opinion being mostly hostile to such activity.[83]

Exceptions [edit]

The first exception to a ban on retrying a accused is if, in a trial, the defendant bribed the judge into acquitting him or her, since the defendant was not in jeopardy.[84]

The other exception to a ban on retrying a defendant is that a member of the armed forces can be retried past court-martial in a military court, even if he or she has been previously acquitted past a noncombatant courtroom.[85]

An private tin be prosecuted by both the Usa and an Indian tribe for the aforementioned acts that constituted crimes in both jurisdictions; it was established by the Supreme Court in United States five. Lara that every bit the 2 are split up sovereigns, prosecuting a crime under both tribal and federal law does non adhere double jeopardy.[86]

Multiple penalisation, including prosecution after conviction [edit]

In Blockburger v. United states (1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for ii crimes if each crime contains an element that the other does not.[87] Blockburger is the default dominion, unless the governing statute legislatively intends to depart; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates,[88] [89] equally can conspiracy.[90]

The Blockburger exam, originally developed in the multiple punishments context, is also the exam for prosecution afterward conviction.[91] In Grady v. Corbin (1990), the Court held that a double jeopardy violation could lie even where the Blockburger test was not satisfied,[92] but Grady was later distinguished in United states 5. Felix (1992), when the court reverted to the Blockburger test without completely dismissing the Grady interpretation. The court eventually overruled Grady in United states of america 5. Dixon (1993).[93]

Prosecution after mistrial [edit]

The rule for mistrials depends upon who sought the mistrial. If the accused 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 authorities specifically wanted a mistrial.[94] If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial.[95] The same standard governs mistrials granted sua sponte.

Retrials are not common, due to the legal expenses to the government. However, in the mid-1980s Georgia antique dealer James Arthur Williams was tried a tape four times for the murder of Danny Hansford and (after three mistrials) was finally acquitted on the grounds of cocky-defense force.[96] The case is recounted in the book Midnight in the Garden of Good and Evil, [97] which was adapted into a film directed by Clint Eastwood (the movie combines the four trials into one).[98]

See also [edit]

  • Sam Sheppard
  • Emmett Till
  • David Smith, British homo acquitted of the murder of a prostitute in 1993, just to be convicted of murdering another sexual practice worker in an "almost identical" instance in 1999

Footnotes [edit]

  1. ^ For example, in Western Commonwealth of australia: "It is a defence force to a charge of any offence to testify that the defendant person has already been tried, and convicted or acquitted upon an indictment or prosecution discover on which he might have been convicted of the offence with which he is charged, or has already been convicted or acquitted of an offence of which he might be bedevilled upon the indictment or prosecution observe on which he is charged."—[half dozen]
  2. ^ The terminology apparently derived from Law French, and is a mixture of French autrefois 'at another time [in the past]' and borrowed-English loanwords.[viii]
  1. ^ Rudstein, David South. (2005). "A Brief History of the 5th Amendment Guarantee Against Double Jeopardy". William & Mary Beak of Rights Journal. xiv (ane).
  2. ^ Buckland, W. W. (1963). A Text-book of Roman Police force from Augustus to Justinian (3 ed.). Cambridge: Cambridge UP. pp. 695–6.
  3. ^ a b "Michael Weir guilty of 1998 'double jeopardy' murders". BBC News. 14 November 2019. Retrieved xiv November 2019.
  4. ^ "Canadian Lease of Rights and Freedoms". Archived from the original on x January 2016. , s 11 (h), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (Great britain), 1982, c eleven
  5. ^ "U.S. Constitution". xxx October 2015. Amend. V.
  6. ^ "Criminal Lawmaking Act Compilation Act 1913, Appendix B, Sch "The Criminal Code" due south 17(1)".
  7. ^ a b Benét, Stephen Vincent (1864). A Treatise on Military Police and the Practice of Courts-martial. p. 97.
  8. ^ Holdsworth, Sir William (1942). A History of English language Police force. Vol. 3 (5 ed.). London: Methuen and Sugariness & Maxwell. pp. 611, 614.
  9. ^ "Nautical chart of signatures and ratifications of Treaty 005 (Convention for the Protection of Man Rights and Fundamental Freedoms)". Council of Europe. 3 Nov 2020. Archived from the original on 3 November 2020. Retrieved 3 November 2020.
  10. ^ a b "European Convention on Man Rights, as amended by Protocols Nos. 11 and 14, supplemented by Protocols Nos. 1, iv, 6, 7, 12 and 13" (PDF). Council of Europe. Retrieved 31 March 2018.
  11. ^ "Protocol No. 7 to the Convention for the Protection of Human Rights and Cardinal Freedoms". Council of Europe.
  12. ^ a b "Coalition Government to introduce double jeopardy reforms". Victoria's double jeopardy laws to exist reworked. Archived from the original on 22 March 2012. Retrieved four February 2012.
  13. ^ Duffy, Conor (7 September 2006). "NSW seeks to scrap double jeopardy principle". The World Today.
  14. ^ "Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008". Retrieved 16 October 2011.
  15. ^ "Attorney General Christian Porter welcomes double jeopardy police force reform". viii September 2011. Retrieved xvi October 2011.
  16. ^ "WA the side by side land 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 Procedure Amendment (Double Jeopardy and Other Matters) Beak 2011".
  19. ^ "Double Jeopardy Changes Insufficient". Brisbane Times. 20 Apr 2007.
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Further reading [edit]

  • Sigler, Jay (1969). Double jeopardy; the evolution 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 rule that prohibits retrial afterward acquittal
  • Questioning Double Jeopardy
  • DoubleJeopardyReform.Org

United Kingdom [edit]

Research and Notes produced for the Uk Parliament, summarising the history of legal modify, views and responses, and analyses:

  • Broadbridge, Sally (2 Dec 2002). "Research paper 02/74: The Criminal Justice Bill: Double jeopardy and prosecution appeals" (PDF). Great britain parliament. Archived from the original (PDF) on 20 November 2006. Retrieved 5 January 2012.
  • Broadbridge, Emerge (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 example involving a claim of double jeopardy)

Other countries [edit]

  • Constabulary Reform Committee of Ireland Consultation Paper on Prosecution Appeals Brought on Indictment

schrockmusidn.blogspot.com

Source: https://en.wikipedia.org/wiki/Double_jeopardy#:~:text=New%20evidence%20can%20be%20applied,grounds%20to%20the%20supreme%20court.

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