Double Jeopardy - Revision history

Ibjadmin at 13:47, 4 November 2016

2016-11-04T13:47:07Z

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	The U.S. Department of Justice has developed an internal restriction on pursuing a prosecution after state prosecution has failed, and will only pursue a second prosecution for "compelling reasons" after the prosecutor has obtained prior approval from the Assistant Attorney General, a restriction known as the "''Petite'' Policy."<ref>''See'' Petite v. United States, 361 U.S. 529 (1960), ''available at'' http://openjurist.org/361/us/529/petite-v-united-states.</ref> A criminal defendant should not rely on this policy, however, as a total restriction against federal prosecution.		The U.S. Department of Justice has developed an internal restriction on pursuing a prosecution after state prosecution has failed, and will only pursue a second prosecution for "compelling reasons" after the prosecutor has obtained prior approval from the Assistant Attorney General, a restriction known as the "''Petite'' Policy."<ref>''See'' Petite v. United States, 361 U.S. 529 (1960), ''available at'' http://openjurist.org/361/us/529/petite-v-united-states.</ref> A criminal defendant should not rely on this policy, however, as a total restriction against federal prosecution.

	Similarly, the "separate sovereigns" doctrine allows for two states to prosecute for the same crime given proper jurisdiction in both locations. For instance, if a man commits a crime that occurs across the boundaries of two states, both states are allowed to prosecute the same charge on the same criminal acts.<ref>''See'' Heath v. Alabama, 474 U.S. 82 (1985), ''available at''http://~~ftp~~.~~resource~~.~~org~~/~~courts.gov/c/US~~/474/~~474.US.~~82~~.84-5555~~.html (holding that the defendant could be prosecuted in both Georgia and Alabama for the same kidnapping and murder charges).</ref> Successive prosecutions by a state and one of its political subdivisions, such as a county, city or village, are not permitted. Similarly, there will be no double jeopardy issues raised by dual prosecutions in the United States and by a foreign sovereign, although issues of diplomacy, international treaties and extradition agreements may be implicated in such proceedings.		Similarly, the "separate sovereigns" doctrine allows for two states to prosecute for the same crime given proper jurisdiction in both locations. For instance, if a man commits a crime that occurs across the boundaries of two states, both states are allowed to prosecute the same charge on the same criminal acts.<ref>''See'' Heath v. Alabama, 474 U.S. 82 (1985), ''available at''http://caselaw.findlaw.com/us-supreme-court/474/82.html (holding that the defendant could be prosecuted in both Georgia and Alabama for the same kidnapping and murder charges).</ref> Successive prosecutions by a state and one of its political subdivisions, such as a county, city or village, are not permitted. Similarly, there will be no double jeopardy issues raised by dual prosecutions in the United States and by a foreign sovereign, although issues of diplomacy, international treaties and extradition agreements may be implicated in such proceedings.

	==Civil v. Criminal Proceedings==		==Civil v. Criminal Proceedings==

Ibjadmin at 11:58, 4 November 2016

2016-11-04T11:58:23Z

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	Jeopardy may also terminate upon a defendant's appeal after a conviction. Upon a reversal for insufficient evidence, the defendant is treated as acquitted and no retrial is allowed. Reversals on other grounds, including defective search warrants and unlawful seizure of evidence, will not terminate jeopardy and will still leave open the possibility of retrial.		Jeopardy may also terminate upon a defendant's appeal after a conviction. Upon a reversal for insufficient evidence, the defendant is treated as acquitted and no retrial is allowed. Reversals on other grounds, including defective search warrants and unlawful seizure of evidence, will not terminate jeopardy and will still leave open the possibility of retrial.

	Jeopardy will not attach, even in light of a final judgment, if the earlier trial is proven to be a fraud or scam. In such instances, retrial is allowed and no double jeopardy concerns are raised. In Harry Aleman v. The Honorable Judges of the Circuit Court of Cook County, the Seventh Circuit denied Aleman's petition for habeas corpus and affirmed the lower court's murder charges against him despite a prior acquittal on the same charges.<ref>Aleman v. The Honorable Judges of the Circuit Court of Cook County, 138 F.3d 302 (1998), ''available at'' ~~http~~://~~ftp~~.resource.org/~~courts.gov~~/c/F3/138/138.F3d.302.97-2479.html</ref> Aleman successfully bribed a Cook County Circuit Judge to acquit him of murder charges in 1977, but a grand jury returned a second indictment against him on the same murder charge in 1993 after evidence of the bribery surfaced. The Seventh Circuit held that the first murder trial against Aleman was a sham, and thus created a situation in which Aleman was never in jeopardy in the first place. As a result, there was no double jeopardy issue and the second murder trial was allowed to proceed.		Jeopardy will not attach, even in light of a final judgment, if the earlier trial is proven to be a fraud or scam. In such instances, retrial is allowed and no double jeopardy concerns are raised. In Harry Aleman v. The Honorable Judges of the Circuit Court of Cook County, the Seventh Circuit denied Aleman's petition for habeas corpus and affirmed the lower court's murder charges against him despite a prior acquittal on the same charges.<ref>Aleman v. The Honorable Judges of the Circuit Court of Cook County, 138 F.3d 302 (1998), ''available at'' https://law.resource.org/pub/us/case/reporter/F3/138/138.F3d.302.97-2479.html </ref> Aleman successfully bribed a Cook County Circuit Judge to acquit him of murder charges in 1977, but a grand jury returned a second indictment against him on the same murder charge in 1993 after evidence of the bribery surfaced. The Seventh Circuit held that the first murder trial against Aleman was a sham, and thus created a situation in which Aleman was never in jeopardy in the first place. As a result, there was no double jeopardy issue and the second murder trial was allowed to proceed.

	==What Constitutes the Same Offense: The ''Blockburger'' Test==		==What Constitutes the Same Offense: The ''Blockburger'' Test==

Jbraun: /* International Examples of the Double Jeopardy Clause */

2010-11-17T13:20:42Z

International Examples of the Double Jeopardy Clause

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	However, by virtue of Section 139 through Section 141 of the CPC, a person may be charged and tried again:		However, by virtue of Section 139 through Section 141 of the CPC, a person may be charged and tried again:
	a. for a separate offence arising from the same set of facts as those of the crime for which the accused was previously convicted or acquitted.		a) for a separate offence arising from the same set of facts as those of the crime for which the accused was previously convicted or acquitted.
	b. for consequences which arise after a conviction or acquittal, if they were not known at the time of conviction or acquittal.		b) for consequences which arise after a conviction or acquittal, if they were not known at the time of conviction or acquittal.
	c. if the court that tried the accused in the first instance was not competent to try the offence for which he is subsequently charged.		c) if the court that tried the accused in the first instance was not competent to try the offence for which he is subsequently charged.


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Jbraun: /* International Examples of the Double Jeopardy Clause */

2010-11-17T13:19:23Z

International Examples of the Double Jeopardy Clause

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	*'''Sri Lanka''' - "No person to be tried twice for the same offence" - <ref>[http://www.lawnet.lk/process.php?st=1981Y2V26C&hword=%27%27&path=5/ Sri Lanka Code of Criminal Procedure Section 314]</ref>		*'''Sri Lanka''' - "No person to be tried twice for the same offence" - <ref>[http://www.lawnet.lk/process.php?st=1981Y2V26C&hword=%27%27&path=5/ Sri Lanka Code of Criminal Procedure Section 314]</ref>

			*"Kenya" - The double jeopardy provisions protect an accused from being tried again on the same or similar charges following an acquittal or conviction. The principal is embodied in Article 50(2)(o) of the Constitution and the Criminal Procedure Code, Sections 138-142.

			However, by virtue of Section 139 through Section 141 of the CPC, a person may be charged and tried again:
			a. for a separate offence arising from the same set of facts as those of the crime for which the accused was previously convicted or acquitted.
			b. for consequences which arise after a conviction or acquittal, if they were not known at the time of conviction or acquittal.
			c. if the court that tried the accused in the first instance was not competent to try the offence for which he is subsequently charged.


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Ibjadmin: /* Notes */

2010-11-02T22:49:48Z

Notes

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	*'''Sri Lanka''' - "No person to be tried twice for the same offence" - <ref>[http://www.lawnet.lk/process.php?st=1981Y2V26C&hword=%27%27&path=5/ Sri Lanka Code of Criminal Procedure Section 314]</ref>		*'''Sri Lanka''' - "No person to be tried twice for the same offence" - <ref>[http://www.lawnet.lk/process.php?st=1981Y2V26C&hword=%27%27&path=5/ Sri Lanka Code of Criminal Procedure Section 314]</ref>

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			See [[Defenses]], [[Rights of the Accused]] and [[Sentencing]]

	= Notes =		= Notes =

	<references/>		<references/>

	~~----~~
	~~See [[Defenses]], [[Rights of the Accused]] and [[Sentencing]]~~

Eric.n.feldman at 11:03, 27 October 2010

2010-10-27T11:03:02Z

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	Jeopardy attaches during a jury trial when the jury is empanelled. In criminal cases tried by a judge without a jury, jeopardy attaches when the first witness is sworn in. If the defendant enters a plea agreement with the prosecution, jeopardy does not attach until the court accepts the plea.		Jeopardy attaches during a jury trial when the jury is empanelled. In criminal cases tried by a judge without a jury, jeopardy attaches when the first witness is sworn in. If the defendant enters a plea agreement with the prosecution, jeopardy does not attach until the court accepts the plea.

	Once jeopardy terminates, the defendant can no longer be haled into court for additional proceedings on the same matter without raising double jeopardy questions. Jeopardy will terminate upon a jury's verdict of acquittal. The verdict may not be overturned on appeal even in the face of overwhelming proof of a defendant's ~~guilt�a~~ measure meant to entrust a jury with the power to nullify prosecutions tainted by police, prosecutorial or judicial misconduct.		Once jeopardy terminates, the defendant can no longer be haled into court for additional proceedings on the same matter without raising double jeopardy questions. Jeopardy will terminate upon a jury's verdict of acquittal. The verdict may not be overturned on appeal even in the face of overwhelming proof of a defendant's guilt as a measure meant to entrust a jury with the power to nullify prosecutions tainted by police, prosecutorial or judicial misconduct.

	Similarly, assuming jeopardy has attached, a subsequent dismissal granted by the trial court for errors, defects or a lack of evidence in the trial terminates jeopardy and serves as an absolute barrier to prosecution. The U.S. Supreme Court has held, however, that dismissal for reasons unrelated to a defendant's guilt or innocence will not bar future prosecution and does not raise double jeopardy issues.<ref>''See'' United States v. Scott, 437 U.S. 82 (1978), ''available at'' http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=437&invol=82</ref> Jeopardy also terminates if a mistrial is granted, normally done when jurors fail to reach a unanimous verdict or when it has become impracticable to finish a case. Importantly though, either a dismissal or a mistrial at the defendant's request or consent will not terminate jeopardy and thus will not preclude retrial.		Similarly, assuming jeopardy has attached, a subsequent dismissal granted by the trial court for errors, defects or a lack of evidence in the trial terminates jeopardy and serves as an absolute barrier to prosecution. The U.S. Supreme Court has held, however, that dismissal for reasons unrelated to a defendant's guilt or innocence will not bar future prosecution and does not raise double jeopardy issues.<ref>''See'' United States v. Scott, 437 U.S. 82 (1978), ''available at'' http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=437&invol=82</ref> Jeopardy also terminates if a mistrial is granted, normally done when jurors fail to reach a unanimous verdict or when it has become impracticable to finish a case. Importantly though, either a dismissal or a mistrial at the defendant's request or consent will not terminate jeopardy and thus will not preclude retrial.

Eric.n.feldman: /* International Examples of the Double Jeopardy Clause */

2010-10-27T06:40:31Z

International Examples of the Double Jeopardy Clause

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	Jeopardy attaches during a jury trial when the jury is empanelled. In criminal cases tried by a judge without a jury, jeopardy attaches when the first witness is sworn in. If the defendant enters a plea agreement with the prosecution, jeopardy does not attach until the court accepts the plea.		Jeopardy attaches during a jury trial when the jury is empanelled. In criminal cases tried by a judge without a jury, jeopardy attaches when the first witness is sworn in. If the defendant enters a plea agreement with the prosecution, jeopardy does not attach until the court accepts the plea.

	Once jeopardy terminates, the defendant can no longer be haled into court for additional proceedings on the same matter without raising double jeopardy questions. Jeopardy will terminate upon a jury's verdict of acquittal. The verdict may not be overturned on appeal even in the face of overwhelming proof of a defendant's measure meant to entrust a jury with the power to nullify prosecutions tainted by police, prosecutorial or judicial misconduct.		Once jeopardy terminates, the defendant can no longer be haled into court for additional proceedings on the same matter without raising double jeopardy questions. Jeopardy will terminate upon a jury's verdict of acquittal. The verdict may not be overturned on appeal even in the face of overwhelming proof of a defendant's guilt�a measure meant to entrust a jury with the power to nullify prosecutions tainted by police, prosecutorial or judicial misconduct.

	Similarly, assuming jeopardy has attached, a subsequent dismissal granted by the trial court for errors, defects or a lack of evidence in the trial terminates jeopardy and serves as an absolute barrier to prosecution. The U.S. Supreme Court has held, however, that dismissal for reasons unrelated to a defendant's guilt or innocence will not bar future prosecution and does not raise double jeopardy issues.<ref>''See'' United States v. Scott, 437 U.S. 82 (1978), ''available at'' http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=437&invol=82</ref> Jeopardy also terminates if a mistrial is granted, normally done when jurors fail to reach a unanimous verdict or when it has become impracticable to finish a case. Importantly though, either a dismissal or a mistrial at the defendant's request or consent will not terminate jeopardy and thus will not preclude retrial.		Similarly, assuming jeopardy has attached, a subsequent dismissal granted by the trial court for errors, defects or a lack of evidence in the trial terminates jeopardy and serves as an absolute barrier to prosecution. The U.S. Supreme Court has held, however, that dismissal for reasons unrelated to a defendant's guilt or innocence will not bar future prosecution and does not raise double jeopardy issues.<ref>''See'' United States v. Scott, 437 U.S. 82 (1978), ''available at'' http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=437&invol=82</ref> Jeopardy also terminates if a mistrial is granted, normally done when jurors fail to reach a unanimous verdict or when it has become impracticable to finish a case. Importantly though, either a dismissal or a mistrial at the defendant's request or consent will not terminate jeopardy and thus will not preclude retrial.
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	*'''Uganda''' "Person not to be punished twice for same offence. - person shall not be punished twice either under this Code or under any other law for the same offence.<ref>Uganda Penal Code Section 18"</ref>		*'''Uganda''' "Person not to be punished twice for same offence. - person shall not be punished twice either under this Code or under any other law for the same offence.<ref>Uganda Penal Code Section 18"</ref>

			*'''Sri Lanka''' - "No person to be tried twice for the same offence" - <ref>[http://www.lawnet.lk/process.php?st=1981Y2V26C&hword=%27%27&path=5/ Sri Lanka Code of Criminal Procedure Section 314]</ref>

	= Notes =		= Notes =

Ibjadmin: /* International Examples of the Double Jeopardy Clause */

2010-10-15T12:09:27Z

International Examples of the Double Jeopardy Clause

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	While civil penalties generally will not run afoul of the Double Jeopardy Clause, in rare circumstances a civil fine might be so extreme that it rises to the level of punitive in nature and thus is blocked by the Fifth Amendment. In ''United States v. Halper'', for example, the U.S. Supreme Court prohibited the federal government from seeking a $130,000 civil penalty against a man who previously had been sentenced to prison for the same offense of filing $585 worth of false Medicare claims.<ref>United States v. Halper, 490 U.S. 435 (1989), ''available at'' http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=490&invol=435.</ref> The Court concluded that the gross disparity between the civil fine imposed and society's economic loss reflected a punitive aim instead of merely a remedial one. It is important to note however that in ''Halper'', the civil fine was being imposed by the government, and it is unlikely that a private party seeking additional damages in similar circumstances would raise any Double Jeopardy Clause issues.		While civil penalties generally will not run afoul of the Double Jeopardy Clause, in rare circumstances a civil fine might be so extreme that it rises to the level of punitive in nature and thus is blocked by the Fifth Amendment. In ''United States v. Halper'', for example, the U.S. Supreme Court prohibited the federal government from seeking a $130,000 civil penalty against a man who previously had been sentenced to prison for the same offense of filing $585 worth of false Medicare claims.<ref>United States v. Halper, 490 U.S. 435 (1989), ''available at'' http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=490&invol=435.</ref> The Court concluded that the gross disparity between the civil fine imposed and society's economic loss reflected a punitive aim instead of merely a remedial one. It is important to note however that in ''Halper'', the civil fine was being imposed by the government, and it is unlikely that a private party seeking additional damages in similar circumstances would raise any Double Jeopardy Clause issues.

	== International Examples of the Double Jeopardy Clause ==		=International Examples of the Double Jeopardy Clause=

	* '''China''' - In China, there is no equivalent to the Double Jeapardy Clause and Procurators may appeal a defendant's aquittal.		* '''China''' - In China, there is no equivalent to the Double Jeapardy Clause and Procurators may appeal a defendant's aquittal.

Ibjadmin: /* International Examples of the Double Jeopardy Clause */

2010-10-15T12:07:16Z

International Examples of the Double Jeopardy Clause

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	== International Examples of the Double Jeopardy Clause ==		== International Examples of the Double Jeopardy Clause ==

	* '''China''' - In China, there is no equivalent to the Double Jeapardy Clause and Procurators may appeal ~~an aquittal of~~ a defendant.		* '''China''' - In China, there is no equivalent to the Double Jeapardy Clause and Procurators may appeal a defendant's aquittal.

	*'''Tanzania''' - "A person shall not be punished twice, either under the provisions of this Code or under the provisions of any other law, for the same offence."<ref> Tanzania Penal Code Section 21</ref>		*'''Tanzania''' - "A person shall not be punished twice, either under the provisions of this Code or under the provisions of any other law, for the same offence."<ref> Tanzania Penal Code Section 21</ref>

Ibjadmin: /* International Examples of the Double Jeopardy Clause */

2010-10-15T12:06:24Z

International Examples of the Double Jeopardy Clause

← Older revision		Revision as of 14:06, 15 October 2010
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	== International Examples of the Double Jeopardy Clause ==		== International Examples of the Double Jeopardy Clause ==

			* '''China''' - In China, there is no equivalent to the Double Jeapardy Clause and Procurators may appeal an aquittal of a defendant.

	*'''Tanzania''' - "A person shall not be punished twice, either under the provisions of this Code or under the provisions of any other law, for the same offence."<ref> Tanzania Penal Code Section 21</ref>		*'''Tanzania''' - "A person shall not be punished twice, either under the provisions of this Code or under the provisions of any other law, for the same offence."<ref> Tanzania Penal Code Section 21</ref>