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Request to Have Your Court Case Tried Again What s It Called

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Legal defence

Double jeopardy is a procedural defense (primarily in common police force jurisdictions) that prevents an defendant person from beingness tried again on the same (or similar) charges following an amortization and in rare cases prosecutorial and/or estimate misconduct in the aforementioned jurisdiction.[one] A variation in common law countries is the peremptory plea, which may take the specific forms of autrefois conduct ('previously acquitted') or autrefois captive ('previously convicted'). These doctrines appear to have originated in ancient Roman police, in the broader principle non bis in idem ('non twice against the same').[2]

Availability as a legal defence [edit]

If a double-jeopardy issue is raised, evidence volition be placed before the courtroom, which volition typically dominion as a preliminary matter 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 can exist initiated if, for example, the acquitted has made a credible admission of guilt. Role of English law for over 800 years, it was partially abolished in England, Wales and Northern Republic of ireland by the Criminal Justice Human activity 2003 where, following demand for change, serious offences may be re-tried post-obit an acquittal if new and compelling evidence is found and for the trial to exist in the public'south involvement.[three] In some countries, including Canada, Mexico, and the Usa, the guarantee confronting beingness "twice put in jeopardy" is a ramble right.[iv] [5] In other countries, the protection is afforded past statute.[a]

In common law countries, a accused may enter a peremptory plea of autrefois acquit ('previously acquitted') or autrefois convict ('previously convicted'), with the aforementioned effect.[vii] [b]

Double jeopardy is non a principle of international law. It does not utilise betwixt unlike countries, unless having been contractually agreed on between those countries equally, for case, in the European union (Art. 54 Schengen Convention), and in diverse 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 Article 14 (vii): "No one shall be liable to be tried or punished again for an offence for which he has already been finally bedevilled or acquitted in accordance with the law and penal process of each state." Notwithstanding, it 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 Council of Europe (which includes almost all European countries and every member of the European Union) have adopted the European Convention on Human Rights.[nine] The optional Protocol No. 7 to the convention, Article four, protects against double jeopardy: "No 1 shall be liable to be tried or punished once 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 accord with the police force and penal procedure of that State."[10]

All EU states ratified this optional protocol except for Frg, the Britain, and kingdom of the netherlands.[11] In those member states, national rules governing double jeopardy may or may not comply with the provision cited in a higher place.

Member states may, even so, implement legislation which allows reopening of a case if new evidence is found or if in that location 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 procedure of the Land concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the issue of the case.

In many European countries, the prosecution may appeal an acquittal to a higher court.[ commendation needed ] This is not regarded as double jeopardy, just as a continuation of the same example. The European Convention on Human Rights permits this by using the phrase "finally acquitted or convicted" as the trigger for prohibiting subsequent prosecution.

Past land [edit]

Australia [edit]

In contrast to other common law nations, Australian double jeopardy police has been held to further prevent the prosecution for perjury post-obit a previous acquittal where a finding of perjury would controvert the acquittal. This was confirmed in the case of R five Carroll, where the police found new evidence 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 post-obit the overturn of his confidence (for perjury) by the High Court 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) coming together of 2007, model legislation to rework double jeopardy laws was drafted,[12] but in that location was no formal agreement for each state to innovate it. All states accept now chosen to introduce legislation that mirrors COAG'south recommendations on "fresh and compelling" bear witness.

In New South 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.[13] On 17 October 2006, the New South Wales Parliament passed legislation abolishing the rule confronting double jeopardy in cases where:

  • an acquittal of a "life judgement offence" (murder, fierce gang rape, big commercial supply or production of illegal drugs) is debunked by "fresh and compelling" testify of guilt;
  • an acquittal of a "fifteen years or more than sentence offence" was tainted (by perjury, blackmail, or perversion of the grade of justice).

On 30 July 2008, South Australia too introduced legislation to bit parts of its double jeopardy police force, 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 let retrial if "new and compelling" testify is found. It applies to serious offences where the penalization was life imprisonment or imprisonment for 14 years or more. Acquittal because of tainting (witness intimidation, jury tampering, or perjury) also permits retrial.[15] [16]

In Tasmania, on 19 Baronial 2008, amendments were introduced to allow retrial in serious cases if there is "fresh and compelling" evidence.[17]

In Victoria on 21 December 2011, legislation was passed allowing new trials where at that place is "fresh and compelling DNA testify, where the person acquitted subsequently admits to the crime, or where it becomes clear that key witnesses have given imitation evidence".[12] However, retrial applications could only be fabricated for serious offences such every bit murder, manslaughter, arson causing death, serious drug offences and aggravated forms of rape and armed robbery.[eighteen]

In Queensland on 18 October 2007, the double jeopardy laws were modified to let a retrial where fresh and compelling evidence becomes bachelor after an acquittal for murder or a "tainted amortization" for a crime conveying a 25-year or more than sentence. A "tainted acquittal" requires a confidence for an administration of justice offence, such equally perjury, that led to the original acquittal. Dissimilar reforms in the United kingdom, New South Wales, Tasmania, Victoria, South Australia and Western Australia, this constabulary does non have a retrospective event, which is unpopular with some advocates of the reform.[19]

Canada [edit]

The Canadian Charter of Rights and Freedoms includes provisions such as section xi(h) prohibiting double jeopardy. However, the prohibition only applies after 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 first trial is annulled. In rare circumstances, a courtroom of appeal might also substitute an acquittal for a conviction. That is non considered double jeopardy since the appeal and the subsequent conviction are then deemed to be a continuation of the original trial.

For an entreatment from an acquittal to be successful, the Supreme Court 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 examination is unfairly beneficial to the prosecution. For example, in his book My Life in Crime and Other Bookish Adventures, Martin Friedland contends that the rule should exist inverse so that a retrial is granted only when the error is shown to exist responsible for the verdict, non but a factor.

A notable example is Guy Paul Morin, who was wrongfully convicted in his 2d trial later the amortization in his first trial was vacated by the Supreme Court of Canada.

In the Guy Turcotte instance, for instance, the Quebec Courtroom of Appeal overturned Turcotte's not criminally responsible verdict and ordered a second trial after it plant that the judge committed an error in the first trial while instructions were given to the jury. Turcotte was later convicted of second-caste murder in the second trial.

France [edit]

Once all appeals accept been wearied on a case, the sentence is final and the activity of the prosecution is closed (code of penal process, art. 6), except if the final ruling was forged.[20] Prosecution for a criminal offence already judged is impossible even if incriminating evidence has been constitute. However, a person who has been convicted may request another trial on the grounds of new exculpating evidence through a procedure known as révision.[21].

French constabulary allows the prosecution to entreatment an acquittal.

Germany [edit]

The Basic Police force (Grundgesetz) for the Federal Republic of Federal republic of germany protects against double jeopardy if a final verdict is pronounced. A verdict is concluding if nobody appeals against it.

Nobody shall be punished multiple times for the aforementioned criminal offense on the basis of general criminal constabulary.

—Art. 103 (three) GG[22] [23]

Even so, each trial party tin can appeal against a verdict in the first instance. The prosecution or the defendants can appeal against a sentence if they disagree with information technology. In this example, the trial starts again in the 2d instance, the court of appeal (Berufungsgericht), which reconsiders the facts and reasons and delivers a last judgement.

If one of the parties disagrees with the 2nd instance'southward judgement, they tin appeal it only for formal judicial reasons. The case will be checked in the third case (Revisionsgericht), whether all laws are practical correctly.

The dominion applies to the whole "historical upshot, which is usually considered a single historical course of actions the separation of which would seem unnatural". This is truthful even if new facts occur that indicate other crimes.

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

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

  1. if a certificate that was considered authentic 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 simple testimony,
  3. if a professional or lay estimate, who made the decision, had committed a criminal offense by violating his or her duties as a approximate in the case
  4. if an acquitted defendant makes a credible confession in court or out of court.

    —§ 362 StPO

In the case of an order of summary penalty, which can exist issued by the court without a trial for lesser misdemeanours, in that location is a further exception:

A retrial non in favour of the defendant is besides permissible if the defendant has been convicted in a final order of summary punishment and new facts or evidence accept been brought frontwards, which found grounds for a conviction of a felony past themselves or in combination with before evidence.

—§ 373a StPO

In Germany, a felony is defined by § 12 (1) StGB every bit a crime that has a minimum of one yr of imprisonment.

India [edit]

A partial protection against double jeopardy is a Fundamental Correct guaranteed nether Article xx (two) of the Constitution of Bharat, which states "No person shall be prosecuted and punished for the aforementioned offence more than once".[24] This provision enshrines the concept of autrefois convict, that no one convicted of an offence can be tried or punished a second fourth dimension. However, information technology does not extend to autrefois acquit, so if a person is acquitted of a crime he tin can be retried. In Bharat, protection against autrefois behave is a statutory right, not 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 Nippon, which came into effect on May 3, 1947, states in Article 39 that

No person shall be held criminally liable for an act which was lawful at the time information technology was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy.

However, in 1950, one defendant was found guilty in the District Court for crimes related to the ballot law and was sentenced to paying a fine. The prosecutor wanted a stronger judgement and appealed to the High Court. Equally a result, the defendant was sentenced to three months of imprisonment. He appealed to the Supreme Court on the grounds that the sentence 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 fifteen judges of the Supreme Court made the Grand Bench Determination to rule against the defendant and declared that a criminal proceeding in the District Court, High Court and Supreme Court is all one case and that in that location is no double jeopardy. In other words, if the prosecutor appeals confronting a judgement of not guilty or a guilty decision that they think does not impose a astringent enough sentence, the defendant will not exist placed in double jeopardy.

On October x, 2003, the Supreme Court made a landmark decision in the area of double jeopardy. The instance involved Article 235 of the Penal Code, which addresses "simple larceny", and Article 2 of the Law for Prevention and Disposition of Robbery, Theft, etc., which addresses "habitual larceny". The Court ruled that in the event that there are two trials for separate cases of unproblematic larceny, information technology will not exist considered double jeopardy, even if the prosecutor could accept charged both of them as a single offense of habitual larceny. The defendant 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 Courtroom ruled that it was within the prosecutor's discretion as to whether to accuse the defendant with one count of habitual larceny or to accuse them with multiple counts of trespassing and simple larceny. In either case, it is not considered double jeopardy.[26] [27] [28]

The Netherlands [edit]

In holland, the state prosecution can appeal a non-guilty verdict at the demote. New prove can be applied during a retrial at a district court. Thus one tin can be tried twice for the aforementioned alleged crime. If one is bedevilled at the district courtroom, the defense can make an appeal on procedural grounds to the supreme court. The supreme courtroom might admit this complaint, and the example volition be reopened all the same over again, at some other district court. Again, new evidence might be introduced by the prosecution.

On 9 April 2013 the Dutch senate voted 36 "aye" versus 35 "no" in favour of a new law that allows the prosecutor to re-endeavour a person who was plant not guilty in court. This new police is limited to crimes where someone died and new evidence must accept been gathered. The new law also works retroactively.[ citation needed ]

Islamic republic of pakistan [edit]

Article xiii of the Constitution of Pakistan protects a person from being punished or prosecuted more than than once for the same offence. Section 403 of The Code of Criminal Procedure contemplates of a situation where as person having one time been tried by a Court of competent jurisdiction and acquitted by such court cannot exist tried once again for the same offence or for any other offence based on like facts. The scope 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 farther elaborated in its Criminal Procedure Act.[29]

South Africa [edit]

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

Every accused person has a correct 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 Republic of S Africa, 1996, s. 35(3)(m)

Due south Korea [edit]

Article 13 of the Southward Korean constitution provides that no denizen shall be placed in double jeopardy.[thirty]

United Kingdom [edit]

England and Wales [edit]

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

Pre-2003 [edit]

The doctrines of autrefois behave and autrefois captive persisted equally part of the common constabulary 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 there should be finality of proceedings.[vii] At that place were only 3 exceptions, all relatively contempo, to the rules:

  • The prosecution has a right of appeal against acquittal in summary cases if the decision appears to be wrong in police force or in backlog of jurisdiction.[31]
  • A retrial is permissible if the interests of justice so require, post-obit appeal against conviction by a defendant.[32]
  • A "tainted acquittal", where in that location has been an offence of interference with, or intimidation of, a juror or witness, can be challenged in the High Court.[33]

In Connelly v DPP [1964] AC 1254, the Law Lords ruled that a accused could not exist tried for whatever offence arising out of substantially the same prepare of facts relied upon in a previous charge of which he had been acquitted, unless there are "special circumstances" proven past the prosecution. There is little case law on the pregnant of "special circumstances", only it has been suggested that the emergence of new evidence would suffice.[34]

A accused who had been bedevilled of an offence could be given a 2nd trial for an aggravated form of that offence if the facts constituting the aggravation were discovered after the outset confidence.[35] By contrast, a person who had been acquitted of a bottom offence could non be tried for an aggravated form even if new testify became bachelor.[36]

Post-2003 [edit]

Following the murder of Stephen Lawrence, the Macpherson Study recommended that the double jeopardy rule should be abrogated in murder cases, and that it should be possible to subject an acquitted murder suspect to a 2d trial if "fresh and feasible" new prove later came to low-cal. The Law Commission later added its back up to this in its study "Double Jeopardy and Prosecution Appeals" (2001). A parallel study into the criminal justice organization by Lord Justice Auld, a past Senior Presiding Judge for England and Wales, had besides commenced in 1999 and was published as the Auld Study 6 months afterwards the Constabulary Commission study. Information technology opined that the Law Commission had been disproportionately cautious past 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 also the yr of a highly-publicised case in which a man, David Smith, was convicted of the murder of a prostitute afterward having been acquitted of the "almost identical"[38] murder of sex worker Sarah Crump 6 years previously.[39] [38] [40] Because of the double jeopardy laws that existed at the fourth dimension, Smith could not be re-tried for Crump's murder, despite police inisting they were non looking for anybody else and that the case was closed and the BBC reporting that Smith had "crush" the before murder charge.[41] [42] [39] [38]

Both Jack Straw (then Dwelling house 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 fourth dimension—inside the Criminal Justice Human action 2003,[44] [45] and this provision came into force in Apr 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 conditions: the retrial must be approved by the Director of Public Prosecutions, and the Courtroom of Appeal must concur to quash the original acquittal due to "new and compelling evidence".[47] Then Managing director of Public Prosecutions, Ken Macdonald QC, said that he expected no more than a handful of cases to be brought in a yr.[48]

Pressure by Ann Ming, the mother of 1989 murder victim Julie Hogg—whose killer, Billy Dunlop, was initially acquitted and subsequently confessed—also contributed to the demand for legal change.[48] On 11 September 2006, Dunlop became the outset person to be convicted of murder following a prior amortization for the aforementioned criminal offense, in his case his 1991 acquittal of Hogg's murder. Some years afterward he had confessed to the crime, and was convicted of perjury, but was unable to be retried for the killing itself. The instance was re-investigated in early 2005, when the new police 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 13 December 2010, Mark Weston became the first person to exist retried and found guilty of murder by a jury (Dunlop having confessed). In 1996 Weston had been acquitted of the murder of Vikki Thompson at Ascott-nether-Wychwood on 12 Baronial 1995, but following the discovery in 2009 of compelling new show (Thompson's blood on Weston'southward boots) he was arrested and tried for a second fourth dimension. He was sentenced to life imprisonment, to serve a minimum of 13 years.[52]

In December 2018, bedevilled paedophile Russell Bishop was besides retried and constitute guilty by a jury for the Babes in the Wood murders of ii 9-yr-one-time girls, Nicola Fellows and Karen Hadaway, on 9 Oct 1986. At the original trial in 1987, a key piece of the prosecution's case rested on the recovery of a discarded blue sweatshirt. Under questioning, Bishop denied that the sweatshirt belonged to him, but his girlfriend, Jennifer Johnson, alleged the clothing was Bishop's, earlier 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'southward case, Bishop was acquitted by the jury after two hours of deliberations.[53] Three years afterward, Bishop was constitute guilty of the abduction, molestation, and attempted murder of a seven-year-old girl in February 1990.[54] In 2014, re-examined past modern forensics, the sweatshirt contained traces of Bishop's DNA, and also had fibres on information technology from both of the girls' wearable.[54] Tapings taken from Karen Hadaway's arm besides yielded traces of Bishop'south DNA.[54] At the 2018 trial, a jury of seven men and five women returned a guilty verdict after ii-and-a-one-half hours of deliberation.[53] [54]

On 14 November 2019, Michael Weir became the first person to be twice institute guilty of a murder. He was originally convicted of the murder of Leonard Harris and Rose Seferian in 1999, simply the conviction was quashed in 2000 by the Court of Entreatment on a technicality. In 2018, new Deoxyribonucleic acid evidence had been obtained and palm prints from both murder scenes were matched to Weir. 20 years after the original conviction, Weir was convicted of the murders for a second time.[3]

Scotland [edit]

The double jeopardy rule no longer applies absolutely in Scotland since the Double Jeopardy (Scotland) Act 2011 came into force on 28 November 2011. The Act introduced 3 broad exceptions to the rule: where the acquittal had been tainted by an endeavour to pervert the grade of justice; where the accused admitted their guilt after acquittal; and where in that location was new evidence.[55]

Northern Ireland [edit]

In Northern Ireland, the Criminal Justice Human activity 2003, effective 18 April 2005,[56] makes sure "qualifying offence" (including murder, rape, kidnapping, specified sexual acts with young children, specified drug offences, defined acts of terrorism, besides as 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 Entreatment that there 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 United States Constitution provides:

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

Conversely, double jeopardy comes with a key exception. Under the multiple sovereignties doctrine, multiple sovereigns tin can indict a defendant for the same crime. The federal and state governments can have overlapping criminal laws, so a criminal offender may be convicted in private states and federal courts for exactly the same law-breaking or for different crimes arising out of the same facts.[threescore] Yet, 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]

As described by the U.S. Supreme Court in its unanimous decision concerning Ball v. United States 163 U.S. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is not against existence twice punished, only confronting being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the commencement trial."[63] The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution subsequently acquittal, subsequent prosecution afterward conviction, subsequent prosecution after sure mistrials, and multiple punishment in the same indictment.[64] Jeopardy "attaches" when the jury is impanelled, the first witness is sworn, or a plea is accepted.[65]

Prosecution after amortization [edit]

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

  • Afterward the entry of an acquittal, whether:
    • a directed verdict before the instance is submitted to the jury,[66] [67]
    • a directed verdict afterward a deadlocked jury,[68]
    • an appellate reversal for sufficiency (except by direct appeal to a higher appellate court),[69] or
    • an "implied acquittal" via conviction of a lesser included offence.[lxx]
  • re-litigating confronting the same defence a fact necessarily plant 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 by collateral estoppel.

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

This principle does not prevent the government from appealing a pre-trial movement to dismiss[73] or other non-merits dismissal,[74] or a directed verdict after a jury conviction,[75] nor does it prevent the trial judge from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has so provided by rule or statute.[76] Nor does it preclude the government from retrying the defendant afterwards 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 go on regardless of a previous state prosecution for that same offence[80] and vice versa[81] because "an act denounced as a crime by both national and land sovereignties is an offence against the peace and nobility of both and may be punished by each".[82] The doctrine is solidly entrenched in the law, but in that location has been a traditional reluctance in the federal executive branch to gratuitously wield the power information technology grants, due to public stance being more often than not hostile to such activity.[83]

Exceptions [edit]

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

An individual can be prosecuted by both the United States and an Indian tribe for the same acts that constituted crimes in both jurisdictions; it was established by the Supreme Courtroom in United States v. Lara that as the two are carve up sovereigns, prosecuting a crime under both tribal and federal police force does not attach double jeopardy.[86]

Multiple punishment, including prosecution afterward conviction [edit]

In Blockburger v. Us (1932), the Supreme Court announced the following test: the government may separately endeavor and punish the accused for two crimes if each crime contains an element that the other does not.[87] Blockburger is the default rule, unless the governing statute legislatively intends to depart; for instance, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates,[88] [89] every bit tin can conspiracy.[90]

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

Prosecution after mistrial [edit]

The rule for mistrials depends upon who sought the mistrial. If the defendant moves for a mistrial, at that place is no bar to retrial, unless the prosecutor acted in "bad religion", i.due east. goaded the defendant into moving for a mistrial because the authorities specifically wanted a mistrial.[94] If the prosecutor moves for a mistrial, in that location is no bar to retrial if the trial guess 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. Yet, in the mid-1980s Georgia antique dealer James Arthur Williams was tried a record iv times for the murder of Danny Hansford and (after three mistrials) was finally acquitted on the grounds of cocky-defence.[96] The instance is recounted in the volume Midnight in the Garden of Good and Evil, [97] which was adjusted into a picture directed by Clint Eastwood (the movie combines the iv trials into 1).[98]

See as well [edit]

  • Sam Sheppard
  • Emmett Till
  • David Smith, British man acquitted of the murder of a prostitute in 1993, but to be convicted of murdering another sex worker in an "about identical" example in 1999

Footnotes [edit]

  1. ^ For example, in Western Commonwealth of australia: "It is a defense to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment or prosecution notice on which he might accept 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 convicted upon the indictment or prosecution notice on which he is charged."—[vi]
  2. ^ The terminology apparently derived from Law French, and is a mixture of French autrefois 'at another time [in the past]' and borrowed-English language loanwords.[8]
  1. ^ Rudstein, David Southward. (2005). "A Cursory History of the 5th Amendment Guarantee Confronting Double Jeopardy". William & Mary Bill of Rights Periodical. 14 (1).
  2. ^ Buckland, W. Due west. (1963). A Text-volume of Roman Police from Augustus to Justinian (3 ed.). Cambridge: Cambridge UP. pp. 695–six.
  3. ^ a b "Michael Weir guilty of 1998 'double jeopardy' murders". BBC News. 14 November 2019. Retrieved 14 November 2019.
  4. ^ "Canadian Charter of Rights and Freedoms". Archived from the original on 10 January 2016. , s 11 (h), Part I of the Constitution Deed, 1982, being Schedule B to the Canada Deed 1982 (UK), 1982, c 11
  5. ^ "U.S. Constitution". 30 Oct 2015. Better. V.
  6. ^ "Criminal Code Deed Compilation Deed 1913, Appendix B, Sch "The Criminal Code" due south 17(one)".
  7. ^ a b Benét, Stephen Vincent (1864). A Treatise on Military Police force and the Practice of Courts-martial. p. 97.
  8. ^ Holdsworth, Sir William (1942). A History of English Law. Vol. 3 (5 ed.). London: Methuen and Sweet & Maxwell. pp. 611, 614.
  9. ^ "Nautical chart of signatures and ratifications of Treaty 005 (Convention for the Protection of Human Rights and Primal Freedoms)". Quango of Europe. 3 Nov 2020. Archived from the original on 3 Nov 2020. Retrieved iii November 2020.
  10. ^ a b "European Convention on Human Rights, as amended by Protocols Nos. 11 and 14, supplemented by Protocols Nos. ane, 4, half dozen, seven, 12 and 13" (PDF). Council of Europe. Retrieved 31 March 2018.
  11. ^ "Protocol No. seven to the Convention for the Protection of Human Rights and Cardinal Freedoms". Quango 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 iv February 2012.
  13. ^ Duffy, Conor (7 September 2006). "NSW seeks to scrap double jeopardy principle". The World Today.
  14. ^ "Criminal Constabulary Consolidation (Double Jeopardy) Amendment Human activity 2008". Retrieved 16 Oct 2011.
  15. ^ "Chaser General Christian Porter welcomes double jeopardy law reform". 8 September 2011. Retrieved sixteen October 2011.
  16. ^ "WA the next state to axe double jeopardy". 8 September 2011. Retrieved 16 Oct 2011.
  17. ^ "Double Jeopardy Police force Reform". Tasmanian Government Media Releases. Retrieved sixteen October 2011. [ dead link ]
  18. ^ "Criminal Procedure Amendment (Double Jeopardy and Other Matters) Nib 2011".
  19. ^ "Double Jeopardy Changes Bereft". Brisbane Times. 20 April 2007.
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Farther reading [edit]

  • Sigler, Jay (1969). Double jeopardy; the development 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 Part
Opposing the dominion that prohibits retrial after acquittal
  • Questioning Double Jeopardy
  • DoubleJeopardyReform.Org

Great britain [edit]

Research and Notes produced for the United kingdom of great britain and northern ireland Parliament, summarising the history of legal modify, views and responses, and analyses:

  • Broadbridge, Emerge (2 December 2002). "Enquiry paper 02/74: The Criminal Justice Bill: Double jeopardy and prosecution appeals" (PDF). United kingdom parliament. Archived from the original (PDF) on 20 November 2006. Retrieved five Jan 2012.
  • Broadbridge, Sally (28 January 2009). "Double jeopardy". UK Parliament. Retrieved 5 January 2012. (direct download link)

United States [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 case involving a merits of double jeopardy)

Other countries [edit]

  • Law Reform Commission of Ireland Consultation Paper on Prosecution Appeals Brought on Indictment

hopkinsefrely.blogspot.com

Source: https://en.wikipedia.org/wiki/Double_jeopardy

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