A change has been happening to the nature of an age old legal right. To people in some countries and jurisdictions this has been a fundamental right, up there with a person’s right to trial. It has been a free standing rule for over 2000 years of recorded history. A person has the right to their day in court, but this addresses a person’s right to not have the same charges brought against them over and over again.
Known as double jeopardy to most, it is the idea that once you are brought in front of your peers or a court, once set free, no one may attempt to punish you for this act again. So why is the traditional understanding of former/double Jeopardy being put into jeopardy?
Table of Contents
I. Introduction
II. Origins of Double Jeopardy
III. Double Jeopardy in America
IV. Double Jeopardy Reform in the British Commonwealth
V. Reasons to Reform
VI. Double Jeopardy Reform in America
VII. Conclusion
Research Objectives and Themes
This paper examines the historical evolution and legal application of the double jeopardy doctrine, contrasting the traditional common law protections against multiple trials with modern legislative reforms that allow for retrials in cases of compelling new evidence.
- Historical origins and the development of the double jeopardy maxim.
- Constitutional integration and case law interpretation in the United States.
- Legislative reform models within the British Commonwealth, specifically the Criminal Justice Act 2003.
- The tension between judicial finality and the societal demand for justice in serious criminal cases.
Excerpt from the Book
IV. Double Jeopardy Reform in the British Commonwealth
In the late 1980’s Billy Dunlop was accused and acquitted of the murder of Julie Hogg in England. Many years later he went on to admit to the crimes, but because of the double jeopardy maxim, he could not be convicted. A string of other similar crimes occurred (after the Hogg murder) which brought media and social pressures on the government to address this discrepancy in the legal system. The events ultimately began a push to reform the criminal justice system with the investigation by Sir William Macpherson (into the murder of Stephen Lawrence). This evidently led the Law Commission of England to write and publish a report recommending the evolution of the old rule in the name of justice and thus permitting retrials’; when there is compelling “new” evidence of guilt and the court is satisfied that it is in the interests of justice to quash the acquittal; and that power should apply equally to acquittals which have already taken place before the law is changed.
These recommendations brought the government to purpose and pass the Criminal Justice Act of 2003, which included substantial reforms to the areas of bad character evidence, Hersey, and common law double jeopardy. The reforms to former Jeopardy are included under Part 10 of the act and only apply to reopening cases which are of serious criminal violations. The act has given the Department of Public Prosecutions (DPP) the ability to reopen and re-try a case by applying for a quashing order of the original verdict and application for retrial on the grounds of new evidence for the qualifying offences. These “qualifying offences” are adapted from the recommendations made by the law commission report; but extend to include a broader spectrum of serious offences under schedule 5 which are not mentioned in the report. This leaves room for the ‘old’ double Jeopardy principle to operate in relation to offences not listed under the CJA 2003. These changes to double jeopardy do not compromise the integrity of the burden of proof on the prosecution; rather it has raised it to a higher level of proof to justify a retrial process.
Summary of Chapters
I. Introduction: Introduces the concept of double jeopardy as a fundamental legal right and outlines the paper's focus on its evolution and the modern trend toward reform.
II. Origins of Double Jeopardy: Explores the historical roots of the doctrine in ancient legal systems and its eventual solidification within English common law.
III. Double Jeopardy in America: Details the adoption of double jeopardy protections in the U.S. colonies and its subsequent constitutional embedding via the Fifth Amendment.
IV. Double Jeopardy Reform in the British Commonwealth: Analyzes the legislative shift in the UK, specifically the Criminal Justice Act 2003, which permits retrials based on new and compelling evidence.
V. Reasons to Reform: Discusses the social and political pressures driving the re-evaluation of absolute finality in criminal trials, balancing accused rights against victim justice.
VI. Double Jeopardy Reform in America: Evaluates the unique American perspective on double jeopardy and explores the potential challenges of integrating similar reform models into the U.S. system.
VII. Conclusion: Summarizes the tension between constitutional protections and the need for evolving justice mechanisms, suggesting a future shift toward compromise.
Keywords
Double jeopardy, Fifth Amendment, common law, Criminal Justice Act 2003, retrial, acquittal, new and compelling evidence, legal reform, jurisprudence, adversarial process, dual sovereignty, Blockburger test, supreme court, trial, justice.
Frequently Asked Questions
What is the core subject of this paper?
The paper examines the legal doctrine of double jeopardy, its origins, its constitutional status in America, and recent efforts in the UK to reform it through exceptions for new evidence.
What are the central themes discussed?
The central themes include the historical shift from absolute protection against retrial to a more flexible model that prioritizes factual truth, alongside the conflict between individual rights and public justice.
What is the primary research objective?
The objective is to analyze whether the U.S. legal system should consider reforms similar to those in the British Commonwealth to mitigate the risks of incorrect acquittals in serious criminal cases.
Which scientific or legal methods are utilized?
The author employs a comparative legal analysis, reviewing historical precedents, case law, statutory developments, and academic discourse from the U.S., UK, and Australia.
What is covered in the main body of the work?
The main body covers the ancient origins of the maxim, the development of American constitutional protections, the specific legislative changes in the UK, and the potential impact of similar reforms on the American justice system.
Which keywords best characterize this work?
Key terms include double jeopardy, Fifth Amendment, retrial, acquittal, Criminal Justice Act 2003, and legal reform.
How does the concept of "dual sovereignty" affect American double jeopardy?
Dual sovereignty allows both federal and state governments to prosecute an individual for the same act if it violates both jurisdictions, essentially acting as an exception to standard double jeopardy protections.
What is the significance of the "Blockburger test"?
The Blockburger test serves as the American standard for determining whether two crimes are considered the "same offence," significantly impacting how double jeopardy is applied in federal courts.
Why are UK courts hesitant to grant retrials despite legislative changes?
Courts remain cautious to ensure that the "new and compelling evidence" threshold is strictly met, thereby protecting the integrity of the judicial process and preventing bias or unfairness to the accused.
- Citation du texte
- Yuce Baykara (Auteur), 2010, The Changing Tide of Double Jeopardy and American Reform, Munich, GRIN Verlag, https://www.grin.com/document/338686
