Skip to content Skip to sidebar Skip to footer
Home / Can People Be Tried Again With New Evidence

Can People Be Tried Again With New Evidence

Post a Comment

Legal defence

Double jeopardy is a procedural defence (primarily in mutual law jurisdictions) that prevents an defendant person from existence tried over again on the same (or similar) charges post-obit an amortization and in rare cases prosecutorial and/or judge misconduct in the same jurisdiction.[1] 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 announced to have originated in ancient Roman law, in the broader principle non bis in idem ('non twice against the same').[2]

Availability as a legal defence [edit]

If a double-jeopardy result is raised, evidence will exist placed before the court, which will typically dominion equally a preliminary affair whether the plea is substantiated; if it is, the projected trial volition be prevented from proceeding. In some countries certain exemptions are permitted. In Scotland a new trial can exist initiated if, for case, the acquitted has made a credible admission of guilt. Office of English law for over 800 years, it was partially abolished in England, Wales and Northern Ireland by the Criminal Justice Deed 2003 where, following demand for change, serious offences may be re-tried following an acquittal if new and compelling prove is plant and for the trial to exist in the public'south interest.[3] In some countries, including Canada, Mexico, and the United states, the guarantee against beingness "twice put in jeopardy" is a constitutional right.[4] [five] 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 convict ('previously bedevilled'), with the aforementioned effect.[7] [b]

Double jeopardy is non a principle of international law. It does non utilize between different countries, unless having been contractually agreed on between those countries equally, for example, in the European Union (Fine art. 54 Schengen Convention), and in various extradition treaties betwixt two countries.

International Covenant on Civil and Political Rights [edit]

The 72 signatories and 166 parties to the International Covenant on Ceremonious and Political Rights recognise, under Article fourteen (vii): "No one shall exist liable to exist tried or punished once more for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal process of each country." However, it does not employ to prosecutions past two different sovereigns (unless the relevant extradition treaty expresses a prohibition).

European Convention on Human being Rights [edit]

All members of the Council of Europe (which includes nearly all European countries and every member of the European union) accept adopted the European Convention on Human Rights.[9] The optional Protocol No. 7 to the convention, Commodity 4, protects against double jeopardy: "No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he or she has already been finally acquitted or bedevilled in accord with the police force and penal process of that State."[x]

All European union states ratified this optional protocol except for Deutschland, the United kingdom of great britain and northern ireland, and the Netherlands.[11] In those fellow member states, national rules governing double jeopardy may or may non comply with the provision cited higher up.

Member states may, yet, implement legislation which allows reopening of a case if new evidence is institute or if there was a fundamental defect in the previous proceedings:[10]

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

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

Past country [edit]

Commonwealth of australia [edit]

In contrast to other common constabulary nations, Australian double jeopardy constabulary has been held to further prevent the prosecution for perjury following a previous acquittal where a finding of perjury would controvert the acquittal. This was confirmed in the instance of R five Carroll, where the police constitute new evidence convincingly disproving Carroll's sworn alibi two decades after he had been acquitted of murder charges in the death 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 force forth 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 there was no formal understanding for each state to introduce information technology. All states have now chosen to introduce legislation that mirrors COAG'due south recommendations on "fresh and compelling" show.

In New South Wales, retrials of serious cases with a minimum sentence of 20 years or more than are at present possible even if the original trial preceded the 2006 reform.[13] On 17 Oct 2006, the New South Wales Parliament passed legislation abolishing the rule confronting double jeopardy in cases where:

  • an amortization of a "life sentence offence" (murder, violent gang rape, big commercial supply or product of illegal drugs) is debunked by "fresh and compelling" evidence of guilt;
  • an acquittal of a "xv years or more sentence offence" was tainted (by perjury, blackmail, or perversion of the course of justice).

On 30 July 2008, Due south Commonwealth of australia also introduced legislation to fleck parts of its double jeopardy law, legalising retrials for serious offences with "fresh and compelling" evidence, or if the amortization was tainted.[14]

In Western Australia, amendments introduced on viii September 2011 allow retrial if "new and compelling" evidence is constitute. It applies to serious offences where the penalisation 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 nineteen August 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 assuasive new trials where there is "fresh and compelling DNA testify, where the person acquitted subsequently admits to the criminal offence, or where information technology becomes clear that key witnesses have given false evidence".[12] However, retrial applications could only exist made for serious offences such as murder, manslaughter, arson causing death, serious drug offences and aggravated forms of rape and armed robbery.[18]

In Queensland on 18 October 2007, the double jeopardy laws were modified to allow a retrial where fresh and compelling bear witness becomes available after an acquittal for murder or a "tainted acquittal" for a crime conveying a 25-twelvemonth or more judgement. A "tainted amortization" requires a confidence for an administration of justice offence, such equally perjury, that led to the original acquittal. Unlike reforms in the United Kingdom, New Southward Wales, Tasmania, Victoria, Due south Australia and Western Australia, this constabulary does not have a retrospective effect, which is unpopular with some advocates of the reform.[19]

Canada [edit]

The Canadian Lease of Rights and Freedoms includes provisions such equally section xi(h) prohibiting double jeopardy. However, the prohibition only applies after an accused person has been "finally" bedevilled or acquitted. Canadian constabulary allows the prosecution to entreatment an acquittal. If the acquittal 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 entreatment might also substitute an acquittal for a confidence. That is not considered double jeopardy since the entreatment and the subsequent conviction are then deemed to be a continuation of the original trial.

For an appeal from an amortization to be successful, the Supreme Court of Canada requires the Crown to show that an mistake 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 example, in his volume My Life in Crime and Other Academic Adventures, Martin Friedland contends that the rule should be inverse and then that a retrial is granted only when the fault is shown to be responsible for the verdict, not just a factor.

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

In the Guy Turcotte case, for instance, the Quebec Courtroom of Entreatment overturned Turcotte'southward not criminally responsible verdict and ordered a second trial after it found that the estimate 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.

French republic [edit]

In one case all appeals accept been exhausted on a case, the judgement is final and the action of the prosecution is airtight (lawmaking of penal process, fine art. half dozen), except if the terminal ruling was forged.[xx] Prosecution for a crime already judged is impossible even if incriminating evidence has been found. However, a person who has been convicted may request some other trial on the grounds of new exculpating bear witness through a procedure known as révision.[21].

French police allows the prosecution to appeal an amortization.

Germany [edit]

The Basic Constabulary (Grundgesetz) for the Federal Republic of Germany protects against double jeopardy if a final verdict is pronounced. A verdict is final if nobody appeals confronting it.

Nobody shall be punished multiple times for the same offense on the basis of general criminal police force.

—Art. 103 (3) GG[22] [23]

However, each trial party can appeal against a verdict in the first instance. The prosecution or the defendants tin appeal confronting a judgement if they disagree with it. In this example, the trial starts once more in the second instance, the court of appeal (Berufungsgericht), which reconsiders the facts and reasons and delivers a concluding sentence.

If one of the parties disagrees with the 2nd instance's judgement, they can entreatment information technology just for formal judicial reasons. The case will be checked in the third instance (Revisionsgericht), whether all laws are applied correctly.

The dominion applies to the whole "historical event, which is usually considered a single historical course of deportment 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 information technology is in favour of the defendant or if the following events had happened:

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

  1. if a document that was considered authentic during the trial was actually not authentic or forged,
  2. if a witness or authorised adept wilfully or negligently made a wrong deposition or wilfully gave a wrong unproblematic testimony,
  3. if a professional person or lay approximate, who fabricated the decision, had committed a crime by violating his or her duties every bit a judge in the instance
  4. if an acquitted defendant makes a credible confession in court or out of court.

    —§ 362 StPO

In the case of an lodge of summary punishment, which can be 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 bedevilled in a final order of summary penalisation and new facts or evidence have been brought forward, which institute grounds for a conviction of a felony by themselves or in combination with earlier evidence.

—§ 373a StPO

In Germany, a felony is defined by § 12 (1) StGB equally a criminal offence that has a minimum of one yr of imprisonment.

Republic of india [edit]

A partial protection against double jeopardy is a Fundamental Right guaranteed under Article 20 (two) of the Constitution of India, which states "No person shall be prosecuted and punished for the same offence more than than once".[24] This provision enshrines the concept of autrefois convict, that no one bedevilled of an offence tin be tried or punished a second time. Yet, it does not extend to autrefois acquit, and and then if a person is acquitted of a offense he can be retried. In India, protection against autrefois carry is a statutory correct, not a fundamental i. Such protection is provided by provisions of the Code of Criminal Procedure rather than by the Constitution.[25]

Nihon [edit]

The Constitution of Japan, which came into effect on May 3, 1947, states in Article 39 that

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

However, in 1950, 1 defendant was found 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 Courtroom. As a event, 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 Commodity 39. On September 27, 1950, all fifteen judges of the Supreme Courtroom fabricated the G Bench Decision to dominion against the defendant and declared that a criminal proceeding in the District Court, High Court and Supreme Court is all ane instance and that there 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 non impose a severe enough sentence, the defendant will not be placed in double jeopardy.

On October 10, 2003, the Supreme Courtroom made a landmark conclusion in the expanse of double jeopardy. The example involved Article 235 of the Penal Code, which addresses "simple larceny", and Article 2 of the Police for Prevention and Disposition of Robbery, Theft, etc., which addresses "habitual larceny". The Courtroom ruled that in the issue that at that place are ii trials for separate cases of simple larceny, it volition not be considered double jeopardy, fifty-fifty if the prosecutor could take charged both of them as a single crime 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 really i offence of habitual larceny and that charging them as split counts was double jeopardy. The Supreme Court ruled that information technology was within the prosecutor's discretion every bit to whether to charge the accused with i 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]

Kingdom of the netherlands [edit]

In the Netherlands, the land prosecution tin entreatment a non-guilty verdict at the demote. New evidence can be practical during a retrial at a district court. Thus i can be tried twice for the aforementioned alleged crime. If 1 is convicted at the commune court, the defence tin make an appeal on procedural grounds to the supreme court. The supreme courtroom might admit this complaint, and the case volition be reopened yet again, at another commune court. Again, new testify might be introduced by the prosecution.

On ix April 2013 the Dutch senate voted 36 "yeah" versus 35 "no" in favour of a new police that allows the prosecutor to re-try a person who was found non guilty in court. This new law is express to crimes where someone died and new bear witness must have been gathered. The new constabulary likewise works retroactively.[ citation needed ]

Islamic republic of pakistan [edit]

Article 13 of the Constitution of Pakistan protects a person from being punished or prosecuted more than once for the same offence. Section 403 of The Code of Criminal Procedure contemplates of a state of affairs where every bit person having in one case been tried by a Court of competent jurisdiction and acquitted by such court cannot be tried again for the same offence or for whatever other offence based on similar facts. The telescopic of department 403 is restricted to criminal proceedings and not to ceremonious proceedings and departmental inquiries.

Serbia [edit]

This principle is incorporated into the Constitution of the Democracy of Serbia and farther elaborated in its Criminal Procedure Deed.[29]

South Africa [edit]

The Bill of Rights in the Constitution of Southward Africa forbids a retrial when at that place has already been an acquittal or a conviction.

Every defendant person has a correct to a fair trial, which includes the correct ... non to be tried for an offence in respect of an deed or omission for which that person has previously been either acquitted or convicted ...

—Constitution of the Democracy of South Africa, 1996, s. 35(iii)(m)

South Korea [edit]

Article xiii of the South Korean constitution provides that no citizen shall be placed in double jeopardy.[30]

United kingdom of great britain and northern ireland [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 acquit and autrefois convict persisted as part of the mutual law from the time of the Norman conquest of England; they were regarded as essential elements for protection of the subject's liberty and respect for due process of law in that in that location should be 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 decision appears to be wrong in law or in excess of jurisdiction.[31]
  • A retrial is permissible if the interests of justice so crave, following entreatment against conviction by a accused.[32]
  • A "tainted acquittal", where there 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 non be tried for whatever offence arising out of substantially the same gear up of facts relied upon in a previous charge of which he had been acquitted, unless in that location are "special circumstances" proven by the prosecution. There is little case police on the pregnant of "special circumstances", only information technology has been suggested that the emergence of new show would suffice.[34]

A accused who had been convicted of an offence could exist given a second trial for an aggravated form of that offence if the facts constituting the bedevilment were discovered later the start conviction.[35] By contrast, a person who had been acquitted of a bottom offence could non exist tried for an aggravated form even if new evidence became bachelor.[36]

Mail-2003 [edit]

Following the murder of Stephen Lawrence, the Macpherson Report recommended that the double jeopardy rule should exist abrogated in murder cases, and that it should be possible to field of study an acquitted murder suspect to a second trial if "fresh and viable" new evidence later came to low-cal. The Constabulary Commission later added its support to this in its report "Double Jeopardy and Prosecution Appeals" (2001). A parallel study into the criminal justice system past Lord Justice Auld, a past Senior Presiding Gauge for England and Wales, had also commenced in 1999 and was published as the Auld Report six months afterward the Constabulary Commission report. It opined that the Law Committee 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 also the year of a highly-publicised instance in which a man, David Smith, was convicted of the murder of a prostitute later on having been acquitted of the "almost identical"[38] murder of sex worker Sarah Crump vi 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'due 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 "beat" the earlier murder charge.[41] [42] [39] [38]

Both Jack Straw (and so Habitation 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 Deed 2003,[44] [45] and this provision came into force in Apr 2005.[46] It opened certain serious crimes (including murder, manslaughter, kidnapping, rape, armed robbery, and serious drug crimes) to a retrial, regardless of when committed, with two weather condition: the retrial must exist canonical past the Director of Public Prosecutions, and the Court of Appeal must agree to quash the original acquittal due to "new and compelling evidence".[47] Then Director of Public Prosecutions, Ken Macdonald QC, said that he expected no more than a handful 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 on confessed—also contributed to the need for legal change.[48] On 11 September 2006, Dunlop became the first person to be convicted of murder following a prior acquittal for the same law-breaking, in his instance 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 issue, and his case was referred to the Court of Entreatment, in Nov 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 thirteen December 2010, Mark Weston became the outset person to be 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-under-Wychwood on 12 August 1995, but following the discovery in 2009 of compelling new evidence (Thompson'south claret on Weston's 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 by a jury for the Babes in the Wood murders of two 9-yr-old girls, Nicola Fellows and Karen Hadaway, on ix October 1986. At the original trial in 1987, a key piece of the prosecution'south case rested on the recovery of a discarded blueish sweatshirt. Under questioning, Bishop denied that the sweatshirt belonged to him, but his girlfriend, Jennifer Johnson, alleged the clothing was Bishop'due 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 later on ii hours of deliberations.[53] Iii years later on, Bishop was found guilty of the abduction, molestation, and attempted murder of a vii-twelvemonth-old girl in February 1990.[54] In 2014, re-examined by modernistic forensics, the sweatshirt contained traces of Bishop'south Dna, and also had fibres on information technology from both of the girls' habiliment.[54] Tapings taken from Karen Hadaway's arm also yielded traces of Bishop'southward Dna.[54] At the 2018 trial, a jury of seven men and five women returned a guilty verdict after two-and-a-half hours of deliberation.[53] [54]

On fourteen November 2019, Michael Weir became the kickoff 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 by the Courtroom of Appeal on a technicality. In 2018, new DNA testify had been obtained and palm prints from both murder scenes were matched to Weir. Twenty years after the original conviction, Weir was convicted of the murders for a second time.[3]

Scotland [edit]

The double jeopardy dominion no longer applies absolutely in Scotland since the Double Jeopardy (Scotland) Act 2011 came into forcefulness on 28 November 2011. The Human action introduced 3 broad exceptions to the rule: where the acquittal had been tainted past an endeavour to pervert the course of justice; where the accused admitted their guilt later acquittal; and where at that place was new show.[55]

Northern Ireland [edit]

In Northern Ireland, the Criminal Justice Act 2003, effective xviii 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 as in certain cases attempts or conspiracies to commit the foregoing)[57] subject to retrial after amortization (including acquittals obtained earlier passage of the Act) if there is a finding by the Court of Appeal that there is "new and compelling evidence."[58]

United States [edit]

The ancient protection of the Common Law confronting double jeopardy is maintained in its full rigour in the United states of america. The 5th Amendment to the United states Constitution provides:

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

Conversely, double jeopardy comes with a central exception. Under the multiple sovereignties doctrine, multiple sovereigns can indict a defendant for the aforementioned law-breaking. The federal and land governments can have overlapping criminal laws, so a criminal offender may exist bedevilled in individual states and federal courts for exactly the same crime or for different crimes arising out of the same facts.[60] All the same, in 2016, the Supreme Court held that Puerto Rico is non a carve up sovereign for purposes of the Double Jeopardy Clause.[61] The dual sovereignty doctrine has been the bailiwick of substantial scholarly criticism.[62]

Equally described by the U.Due south. Supreme Court in its unanimous decision apropos Ball v. Usa 163 U.S. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is not against being twice punished, but confronting being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial."[63] The Double Jeopardy Clause encompasses iv distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution later on certain 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 later on acquittal [edit]

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

  • Later the entry of an acquittal, whether:
    • a directed verdict before the case is submitted to the jury,[66] [67]
    • a directed verdict subsequently a deadlocked jury,[68]
    • an appellate reversal for sufficiency (except by straight appeal to a higher appellate court),[69] or
    • an "implied acquittal" via conviction of a lesser included offence.[70]
  • re-litigating confronting the same defence a fact necessarily plant past the jury in a prior acquittal,[71] even if the jury hung on other counts.[72] In such a situation, the government is barred by collateral estoppel.

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

This principle does not prevent the government from appealing a pre-trial move to dismiss[73] or other non-merits dismissal,[74] or a directed verdict later 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 then provided past rule 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 proceed 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 state sovereignties is an offence against the peace and dignity of both and may be punished by each".[82] The doctrine is solidly entrenched in the law, but at that place has been a traditional reluctance in the federal executive co-operative to gratuitously wield the power information technology grants, due to public opinion 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 estimate into acquitting him or her, since the defendant was non in jeopardy.[84]

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

An individual tin be prosecuted by both the United States and an Indian tribe for the same acts that constituted crimes in both jurisdictions; information technology was established by the Supreme Court in United States v. Lara that as the ii are separate sovereigns, prosecuting a crime nether both tribal and federal law does non attach double jeopardy.[86]

Multiple penalization, including prosecution later on confidence [edit]

In Blockburger five. United States (1932), the Supreme Court announced the following test: the government may separately try 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 example, Continuing Criminal Enterprise (CCE) may exist punished separately from its predicates,[88] [89] as can conspiracy.[xc]

The Blockburger test, originally adult in the multiple punishments context, is as well 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 test was non satisfied,[92] but Grady was later distinguished in U.s.a. v. Felix (1992), when the courtroom reverted to the Blockburger test without completely dismissing the Grady interpretation. The courtroom eventually overruled Grady in United states of america v. Dixon (1993).[93]

Prosecution afterwards mistrial [edit]

The rule for mistrials depends upon who sought the mistrial. If the defendant moves for a mistrial, in that location is no bar to retrial, unless the prosecutor acted in "bad faith", i.e. goaded the accused into moving for a mistrial because the government 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 mutual, due to the legal expenses to the government. Nonetheless, in the mid-1980s Georgia antique dealer James Arthur Williams was tried a record four times for the murder of Danny Hansford and (later three mistrials) was finally acquitted on the grounds of self-defence.[96] The case is recounted in the book Midnight in the Garden of Proficient and Evil, [97] which was adjusted into a moving picture directed past Clint Eastwood (the movie combines the four trials into one).[98]

See also [edit]

  • Sam Sheppard
  • Emmett Till
  • David Smith, British human being acquitted of the murder of a prostitute in 1993, only to be convicted of murdering some other sex worker in an "almost identical" case in 1999

Footnotes [edit]

  1. ^ For example, in Western Commonwealth of australia: "It is a defence to a charge of whatever 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 exist convicted upon the indictment or prosecution detect 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 S. (2005). "A Cursory History of the 5th Subpoena Guarantee Against Double Jeopardy". William & Mary Pecker of Rights Journal. xiv (ane).
  2. ^ Buckland, W. W. (1963). A Text-book of Roman Law from Augustus to Justinian (3 ed.). Cambridge: Cambridge Upwards. pp. 695–6.
  3. ^ a b "Michael Weir guilty of 1998 'double jeopardy' murders". BBC News. xiv Nov 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 Act, 1982, beingness Schedule B to the Canada Human action 1982 (UK), 1982, c xi
  5. ^ "U.S. Constitution". 30 October 2015. Meliorate. V.
  6. ^ "Criminal Code Act Compilation Human action 1913, Appendix B, Sch "The Criminal Lawmaking" s 17(i)".
  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 Law. Vol. 3 (5 ed.). London: Methuen and Sweet & Maxwell. pp. 611, 614.
  9. ^ "Chart of signatures and ratifications of Treaty 005 (Convention for the Protection of Human being Rights and Fundamental Freedoms)". Council of Europe. three November 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. xi and xiv, supplemented past Protocols Nos. 1, 4, 6, vii, 12 and xiii" (PDF). Quango of Europe. Retrieved 31 March 2018.
  11. ^ "Protocol No. 7 to the Convention for the Protection of Homo Rights and Fundamental Freedoms". Council of Europe.
  12. ^ a b "Coalition Government to introduce double jeopardy reforms". Victoria's double jeopardy laws to be reworked. Archived from the original on 22 March 2012. Retrieved four February 2012.
  13. ^ Duffy, Conor (seven September 2006). "NSW seeks to chip double jeopardy principle". The Globe Today.
  14. ^ "Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008". Retrieved 16 October 2011.
  15. ^ "Attorney General Christian Porter welcomes double jeopardy law reform". 8 September 2011. Retrieved 16 October 2011.
  16. ^ "WA the adjacent land to axe double jeopardy". 8 September 2011. Retrieved sixteen October 2011.
  17. ^ "Double Jeopardy Law Reform". Tasmanian Authorities Media Releases. Retrieved 16 October 2011. [ dead link ]
  18. ^ "Criminal Procedure Subpoena (Double Jeopardy and Other Matters) Bill 2011".
  19. ^ "Double Jeopardy Changes Bereft". Brisbane Times. 20 April 2007.
  20. ^ "Code of penal procedure, article half-dozen" (in French). Legifrance. Retrieved 2 January 2012.
  21. ^ "Code of penal process, manufactures 622–626" (in French). Legifrance. Retrieved ii Jan 2012.
  22. ^ "Grundgesetz für die Bundesrepublik Deutschland" [Basic Police for the Federal Democracy of Deutschland] (PDF) (in German).
  23. ^ Currie, David. "Lochner Abroad: Substantive Due Procedure and Equal Protection in the Federal Democracy of Germany" (PDF). German language Law Journal. nine (12). Archived from the original (PDF) on 25 April 2012.
  24. ^ "Article 20, Section two". Constitution of India. Archived from the original on 24 November 2010. No person shall be prosecuted and punished for the same offence more than once.
  25. ^ Sharma; Sharma B.m. (2007). Introduction to the Constitution of India. PHI Learning Pvt. Ltd. pp. 94. ISBN978-81-203-3246-1.
  26. ^ 刑事裁判を考える：高野隆＠ブログ:二重の危険. Weblog.livedoor.jp (14 May 2007). Retrieved on two January 2012.
  27. ^ Sasakura, Kana (6 December 2012). "Double Jeopardy and the Japanese Law". The Wrongful Convictions Web log . Retrieved 29 Jan 2022.
  28. ^ Cleary, William (June 2005). "The Law of Double Jeopardy in Contemporary Japan". Iwate University Repository. Artes liberales: Bulletin of the Faculty of Humanities and Social Sciences, Iwate University. Retrieved 29 January 2022.
  29. ^ Article six. of the Criminal Procedure Act – ZAKONIK O KRIVIČNOM POSTUPKU ("Sl. list SRJ", br. lxx/2001 i 68/2002 i "Sl. glasnik RS", br. 58/2004, 85/2005, 115/2005, 85/2005 – dr. zakon, 49/2007, 20/2009 – dr. zakon i 72/2009)
  30. ^ Affiliate Two Rights and Duties of the Citizens, Constitution of the democracy of Korea.
  31. ^ Magistrates' Courts Human activity 1980 ss.28, 111; Supreme Court Act 1981 south.28
  32. ^ Criminal Appeal Act 1968 due south.7
  33. ^ Criminal Procedure and Investigations Deed 1996 due south.54
  34. ^ Chaser-General for Gibraltar five Leoni, Court of Appeal, 1999 (unreported); encounter Law Com CP No 156, para 2.24
  35. ^ R v Thomas [1950] 1 KB 26
  36. ^ R v Beedie [1998] QB 356, Dingwall, 2000
  37. ^ "A Review of the Criminal Courts of England and Wales by The Correct Honourable Lord Justice Auld". September 2001. Archived from the original on 7 June 2009. Retrieved 5 January 2012.
  38. ^ a b c "Prostitute murderer gets life". BBC News. 8 December 1999. Retrieved twenty Apr 2022.
  39. ^ a b "Killer beat earlier murder accuse". BBC News. 8 December 1999. Retrieved 20 Apr 2022.
  40. ^ "Police force probe killer sadist Life for lorry driver who was cleared of carbon-re-create murder of prostitute in 1993". HeraldScotland. 9 December 1999. Retrieved 20 April 2022.
  41. ^ Hope, Christopher (28 November 2008). "David Smith's size xiv anxiety could link him to iii more murders". The Telegraph . Retrieved 20 April 2022.
  42. ^ Widdup, Ellen (13 April 2012). "'Bigfoot' print may link killer to vice girl deaths". Evening Standard . Retrieved 20 April 2022.
  43. ^ "Straw moves to flake Magna Carta double jeopardy law". The Telegraph. 5 November 2000. Archived from the original on 12 Jan 2022. Retrieved xiii Oct 2014.
  44. ^ Broadbridge, Sally (2 December 2002). "Research newspaper 02/74: The Criminal Justice Bill: Double jeopardy and prosecution appeals" (PDF). UK parliament. Archived from the original (PDF) on xx November 2006. Retrieved 5 Jan 2012.
  45. ^ "Criminal Justice Act 2003 (c. 44) Role 10: Retrial for serious offences". Her Majesty's Stationery Role. 20 November 2003. Retrieved 5 June 2014.
  46. ^ Double jeopardy law ushered out, BBC News. three April 2005
  47. ^ Retrial of Serious Offences. The CPS. Retrieved on 2 January 2012.
  48. ^ a b c Murder confidence is legal offset, BBC News. 11 September 2006
  49. ^ Human being faces double jeopardy retrial, BBC News. 10 November 2005
  50. ^ The law of 'double jeopardy', BBC News. 11 September 2006
  51. ^ Double jeopardy homo is given life, BBC News. 6 October 2006
  52. ^ "'Double jeopardy' man guilty of Vikki Thompson murder". BBC News Oxford. 13 December 2010. Retrieved 13 December 2010.
  53. ^ a b c Evans, Martin; Sawer, Patrick (10 December 2018). "Babes in the Wood murders: after the police force blunders and killer'south deceit, how justice caught upwards with Russell Bishop, 32 years on". The Telegraph. ISSN 0307-1235. Archived from the original on 12 Jan 2022. Retrieved x December 2018.
  54. ^ a b c d Quinn, Ben (x December 2018). "Man plant guilty of 1986 Brighton 'babes in the wood' murders". The Guardian. ISSN 0261-3077. Retrieved 10 December 2018.
  55. ^ "Double Jeopardy (Scotland) Human activity 2011" legislation.gov.uk retrieved six January 2012.
  56. ^ "Commencement of Provisions – Criminal Justice Act of 2003," Archived 28 September 2011 at the Wayback Car Northern Ireland Part.
  57. ^ Schedule five Part 2 Archived 2 July 2010 at the Wayback Machine of the Criminal Justice Human activity of 2003.
  58. ^ "Retrial for serious offences," Archived 23 Jan 2010 at the Wayback Machine Office 10 of Criminal Justice Human activity of 2003.
  59. ^ Harper, Timothy (2 Oct 2007). The Complete Idiot'southward Guide to the U.S. Constitution. Penguin Grouping. p. 109. ISBN978-1-59257-627-2. Yet, the Fifth Amendment contains several other important provisions for protecting your rights. Information technology is the source of the double jeopardy doctrine, which prevents authorities from trying a person twice for the aforementioned crime ...
  60. ^ Gamble five. United states, No. 17-646, 587 U.Southward. ___ (2019).
  61. ^ Puerto Rico v. Sanchez Valle, No. 15-108, 579 U.S. ___ (2016).
  62. ^ Adler, Adam J. "Dual Sovereignty, Due Process, and Duplicative Punishment: A New Solution to an Old Problem". Yale Law Journal. N.p., November. 2014. Spider web. 15 November 2015. [1]
  63. ^ United States v. Ball , 163 662 (1896).
  64. ^ N Carolina v. Pearce, 395 U.S. 711 (1969).
  65. ^ Crist v. Bretz, 437 U.S. 28 (1978).
  66. ^ Fong Foo v. United States, 369 U.S. 141 (1962).
  67. ^ Sanabria v. The states, 437 U.S. 54 (1978).
  68. ^ United States v. Martin Linen Supply Co., 430 U.S. 564 (1977).
  69. ^ Burks 5. United states of america, 437 U.Southward. 1 (1978).
  70. ^ Green v. United States, 355 U.South. 184 (1957).
  71. ^ Ashe v. Swenson, 397 U.S. 436 (1970).
  72. ^ Yeager 5. The states, 557 U.S. 110 (2009).
  73. ^ Serfass v. United states, 420 U.Due south. 377 (1973).
  74. ^ United states 5. Scott, 437 U.S. 82 (1978).
  75. ^ Wilson five. U.s.a., 420 U.Southward. 332 (1975).
  76. ^ Smith v. Massachusetts, 543 U.Due south. 462 (2005).
  77. ^ Brawl v. United States, 163 U.S. 662 (1896).
  78. ^ U.s.a. v. Tateo, 377 U.South. 463 (1964).
  79. ^ Tibbs 5. Florida, 457 U.South. 31 (1982).
  80. ^ Abbate v. United States, 359 U.Due south. 187 (1959).
  81. ^ Bartkus v. Illinois, 359 U.S. 121 (1959).
  82. ^ Usa v. Lanza, 260 U.Southward. 377 (1922).
  83. ^ Wayne R. LaFave, et al., Criminal Procedure § 25.5(a) (4th ed. 2004).
  84. ^ Aleman v. Judges of the Excursion Court of Cook County , 138 F.3d 302 (7th Cir. 1998).
  85. ^ SBM Weblog (14 Nov 2011). "Double Jeopardy and the Armed forces: A Sensational Case in Bespeak - SBM Web log". Sbmblog.typepad.com. Retrieved fourteen May 2012.
  86. ^ "United States five. Lara - Cursory (Claim)". www.justice.gov. 21 Oct 2014. Retrieved 5 March 2020.
  87. ^ Blockburger v. United States, 284 U.S. 299 (1932) Run into, e.grand., Brown v. Ohio, 432 U.Due south. 161 (1977).
  88. ^ Garrett v. United states, 471 U.South. 773 (1985).
  89. ^ Rutledge v. United States, 517 U.S. 292 (1996).
  90. ^ United States 5. Felix, 503 U.S. 378 (1992).
  91. ^ Missouri v. Hunter, 459 U.S. 359 (1983).
  92. ^ Grady v. Corbin, 495 U.S. 508 (1990).
  93. ^ United States v. Dixon, 509 U.S. 688 (1993).
  94. ^ Oregon v. Kennedy, 456 U.Due south. 667 (1982).
  95. ^ Arizona 5. Washington, 434 U.S. 497 (1978).
  96. ^ "James Williams - National Registry of Exonerations". www.constabulary.umich.edu . Retrieved 3 January 2020.
  97. ^ Domet, Sarah (xiii September 2019). "25 Years Afterward Midnight". Savannah Magazine . Retrieved 3 January 2020.
  98. ^ Ebert, Roger. "Midnight In The Garden Of Good And Evil movie review (1997) | Roger Ebert". www.rogerebert.com . Retrieved 3 January 2020.

Further 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 Office
Opposing the rule that prohibits retrial later acquittal
  • Questioning Double Jeopardy
  • DoubleJeopardyReform.Org

Great britain [edit]

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

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

United states [edit]

  • FindLaw Annotation of the 5th Amendment to the Constitution
  • Double Jeopardy Game on uscourts.gov (archived from the original on 2006-01-10)
  • Jack McCall (famous murder instance involving a claim of double jeopardy)

Other countries [edit]

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

mageethares.blogspot.com

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

You may like these posts

Post a Comment for "Can People Be Tried Again With New Evidence"