Difference between revisions of "Double Jeopardy"

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== Background ==
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==Background==
  
 
Double jeopardy is a procedural defense that prevents a defendant from being tried multiple times on the same or similar charge, following a legitimate acquittal or conviction.  The concept of double jeopardy is a longstanding norm in Western legal thought, having roots in both Greek and Roman Law.<ref>http://legal-dictionary.thefreedictionary.com/double+jeopardy.</ref>  As a result, the tradition of double jeopardy is present in a great number of modern legal regimes in one form or another. Many countries have codified protections against double jeopardy as a constitutional right, including Canada, India, Israel, Mexico and the United States.
 
Double jeopardy is a procedural defense that prevents a defendant from being tried multiple times on the same or similar charge, following a legitimate acquittal or conviction.  The concept of double jeopardy is a longstanding norm in Western legal thought, having roots in both Greek and Roman Law.<ref>http://legal-dictionary.thefreedictionary.com/double+jeopardy.</ref>  As a result, the tradition of double jeopardy is present in a great number of modern legal regimes in one form or another. Many countries have codified protections against double jeopardy as a constitutional right, including Canada, India, Israel, Mexico and the United States.
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However, double jeopardy does not generally prohibit the government from bringing a civil action against a defendant for the same offense, even after the defendant is acquitted of the crime.  Additionally, acquittal in one jurisdiction does not necessarily bar trial in another for the same offense.
 
However, double jeopardy does not generally prohibit the government from bringing a civil action against a defendant for the same offense, even after the defendant is acquitted of the crime.  Additionally, acquittal in one jurisdiction does not necessarily bar trial in another for the same offense.
  
== Application in the United States ==
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==Application in the United States==
  
 
The Fifth Amendment to the U.S. Constitution provides in part, "No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb[.]"<ref>U.S. Const amend. V, ''available at'' http://topics.law.cornell.edu/constitution/fifth_amendment</ref>.  This portion of the Fifth Amendment is known as the Double Jeopardy Clause, which prohibits state and federal governments from prosecuting individuals for the same crime on more than one occasion, or imposing more than one punishment for a single offense.  Although the Fifth Amendment initially applied only to the federal government, the U.S. Supreme Court ruled in ''Benton v. Maryland'' that the Double Jeopardy Clause applies to the states as well through the Fourteenth Amendment.<ref>Benton v. Maryland, 395 U.S. 784 (1969), ''available at'' http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=395&invol=784</ref> Following ''Benton'', no state may provide its residents with less double jeopardy protection, either by way of state constitution or statute, than that provided by the Fifth Amendment.
 
The Fifth Amendment to the U.S. Constitution provides in part, "No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb[.]"<ref>U.S. Const amend. V, ''available at'' http://topics.law.cornell.edu/constitution/fifth_amendment</ref>.  This portion of the Fifth Amendment is known as the Double Jeopardy Clause, which prohibits state and federal governments from prosecuting individuals for the same crime on more than one occasion, or imposing more than one punishment for a single offense.  Although the Fifth Amendment initially applied only to the federal government, the U.S. Supreme Court ruled in ''Benton v. Maryland'' that the Double Jeopardy Clause applies to the states as well through the Fourteenth Amendment.<ref>Benton v. Maryland, 395 U.S. 784 (1969), ''available at'' http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=395&invol=784</ref> Following ''Benton'', no state may provide its residents with less double jeopardy protection, either by way of state constitution or statute, than that provided by the Fifth Amendment.
  
=When Jeopardy Attaches and Terminates=
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==When Jeopardy Attaches and Terminates==
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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.
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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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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.
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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.
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==Notes==
 
==Notes==
  

Revision as of 15:57, 14 October 2010