DOUBLE JEOPARDY A review of the Law

Lovetta Smith

CJUS 220 Professor Jeff Sexton October 13, 2013

INTRODUCTION

This essay will provide detailed information on the Fifth Amendment which is very important in the United States. It will explain and give understanding of the importance of the Double Jeopardy Amendment and how it is used in the system of Law. Also it will discuss case in which involved the Fifth Amendment and how it was used to protect the citizens of several cases and how the people were protected with the Fifth Amendment rule inside the system of law.

Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same charges following a legitimate acquittal or conviction. In most countries with the common law rule most criminals are allowed to enter a plea of not guilty or autrefois acquit, which is a French law meaning a person has been found not guilty of the same charge in a previous trial with the same evidence and cannot be retried for the same crime regardless of what new evidence that has surfaced.

Double Jeopardy is a procedural defense that protects a person from being tried again for the same crime. Double Jeopardy is the oldest legal concept of western civilizations. Double jeopardy is the prosecution of a person for an offense for which he or she has already been prosecuted. The double jeopardy clause, which is in the Fifth Amendment of the United States Constitution, was designed to protect an individual from being subject to trials and possible convictions more than once for an alleged offense.

The idea was not to give the State too much over the individual, this way no individual will be subject to embarrassment, expense, and ordeal against being tried for an alleged offense more than once. It also reduces the possibility of someone innocent being found guilty.

The double jeopardy clause of the Fifth Amendment embodies three protections to criminal defendants:
(1) It protects against second punishment for the same offense after acquittal (2) It protects against second punishment for the same offense after conviction.
(3) It protects against multiple punishments for the same offense

I. This law protects you from being charged twice for the same crime. This does not work if you do the same crime two different times.
A. For instance, if someone commits a crime that results in someone's injury and they later die from that injury because of a certain activity that they had been doing, that person cannot be tried again.

1. If a person is about to get tried for the same crime again they can try to dismiss it using double jeopardy.

2. They should not deny that person's claim because the double jeopardy law states you cannot be tried for the same crime twice, but some try to switch the indictment around and have it still stand for the same thing and try to punish you with it.

II. The double jeopardy law is the Fifth Amendment, and still is a very big situation in the Supreme Court. In the Supreme Court, a high degree of a crime in the same category includes all of the lower crimes in that category.

A. For instance, if someone commits armed robbery, since robbery is a lower offense, which is included in the charge.

1. This does not mean they can't still be charged with a lower offense.
2. They just cannot charge that person for each of those crimes twice, or over, and over again as they would be breaking the double jeopardy law, which is why it was created.

III. It is said that double jeopardy has never really set limits for the legislature. That means some do not even abide by what is the Fifth Amendment.

A. So, what this is saying is, in some cases people are sometimes are still tried for the same crime twice even though they should not be allowed to do this at all.

1. Also, a judge cannot charge a criminal with a crime that he has been charged with before even if it was terminated then.

2. When it comes down to it some legislators do not do what is right and disobey the Fifth Amendment, and some do.

Double Jeopardy is a clause within the Fifth Amendment of the United States Constitution that prohibits an individual from being tried twice for the same criminal offense. If a person murders an individual, he or she cannot be convicted twice of murder for the same offense. According to the United States Constitution of the America, Amendment V (1791) clearly states “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. .” Double jeopardy is very complex, but there are certain principles involved that are clear in violation of one’s constitutional right not to be placed in jeopardy twice for the same offense.

Although, double jeopardy protects defendants from being prosecuted more than once for the same crime, there are a few exceptions to the rule? In addition, there are five policies put in place that provides specific reasons for the protection against double jeopardy. Those policies include:

a) Preventing the government from erroneously convicting innocent persons; b) protecting subjects from repetitive emotional, financial, and social ramifications of prosecutions;

c) Safeguarding the irrevocability and reliability of criminal proceedings, this could cause negotiation if the government was allowed to randomly ignore outcomes?

d) Limiting prosecutorial prudence over the accusation process;

e) Eliminating judicial diplomacy to enforce collective punishments that are otherwise not clearly prohibited by law.

The defense of double jeopardy also is a prevention of retrying a person for the exact same crime even after an acquittal in the case of Ball v. United States, 163 U.S. 662, 16 S. Ct.1192, 41 Led. 300 (1896). The same principle has been applied after conviction, in more recent years; but if a defendant appeals a conviction and succeeds, it is not double jeopardy for the prosecution to retry the defendant; unless a higher court (appellate court) rules insufficient evidence in the case to sustain the defendant’s conviction, Nor would it be double jeopardy in a case if the trial court declares a mistral by the defendant. However, if the government moves for a mistrial and the defendant objects, and the mistrial is granted, the prosecution must establish a manifest necessity—that which is clearly a necessity or essential, in order for the retrial to be permissible.

The defense of double jeopardy can be asserted by pretrial motion. It can also be asserted in any proceedings including criminal, civil, judicial, administrative, adjudicatory, and investigatory. Some states might not guarantee this right in their laws; however, because of the Fifth Amendment’s Double Jeopardy Clause, double jeopardy defense must still be afforded.

There are many cases that reflect the protection of double jeopardy among many. I would like to briefly discuss the 1981 murder and conspiracy case against Kazuyoshi Miura became a national story. Posted in the Los Angeles Times, in 1994, Miura was acquitted later in the trial on his wife’s murder, but not before the courts had found him guilty found guilty. Because of his acquittal the courts were unable to put Miura at risk of double jeopardy. Therefore he was not eligible to be re-tried for this same crime again.

On November 3rd 1979; the members of this communist party down in Greensboro North Carolina Sang “Death of the Klan “when a group of white men drove up an began to fire killing five protesters. These guys were charged and went to trial where they were later acquitted of those crimes. This sent the public into a total outrage because they felt a miscarriage in the Justice System. The Federal courts arrested 6 of the ku Klux Klan and 3 of the members of the American Nazi party for the slaying of the victims. After a very long trial; the defendants in this was acquitted. .Found Not Guilty.

This has been almost thirty five years ago and I think that this massacre has nearly been forgotten across world. There is another case that is were similar to this, but it only involved on victim and not several and it was, the case of George Zimmerman and Trayvon Martin. On February 26, 2012 George Zimmerman shot and killed 17 year old Trayvon Martin in the claims of self-defense. The Trial of George Zimmerman vs. Florida lasted a little over a year, where on July 13, 2013 he was acquitted by the jury’s decision of not guilty. This sent the nation into rage and a battle of races.

Once the verdict had been rendered in the courts whether it murder, rape, robbery, or whatever the case maybe. If the defendant is found not guilty and acquitted of all charges, there will be no retrial and there is nothing that can take this trial back to court. After the acquittal of Zimmerman new evidence started to come about that people claim to have no idea of. People also stated that his brother came forth an stated that it was all out of racism, but the problem is it’s over and nothing can be done at this point. He has since the trial had issues with his wife and family where she has claimed that he pulled a gun on her and her father during an assault attack by Zimmerman.

I truly believed that this has raised red flags in the state of Florida and they know that they cannot take it back to court for no means. The only way he will end up back in court if he commits another crime and new charges are bought up against him. He will only be tried for the new charges not for what he was previously acquitted of.

The NAACP put together a petition and ran it nationally for people to sign encouraging the Justice Department to file Civil Rights charges against Zimmerman. According to the law these options are supposed to fix what the jury has mad wrong right (Remedy). The U.S. Constitution hinders a person from being tried of the same crime twice. The government gets only one chance to take away life or Liberty of a person during a trial. Once it is acquitted it’s over and said and done. They cannot keep trying a person until they have enough to find them guilty the law strongly supports that.

In common law countries the defendant may enter into autrefois acquit or convict; which means in French (“In the Past “ ). If the defended has been tried acquitted or convicted of a crime then they are protected by the Fifth Amendment of being tried for the same offense. If this happens then the evidence will be placed before the courts, where it will be prevented from continuing on due to the previous acquittal. In countries such as Canada, Mexico, and the United States, a person is guaranteed that he/she will not be twice put in jeopardy, it’s” a Constitutional Right”. It other countries the protection is protected by the Statue Law.

In Europe all members of the council and this goes for all the countries in Europe, must sign the European Human convention rights which protects the Double Jeopardy Law. The seventh protocol of the European Convention states that: “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 convicted in accordance with the law and penal procedure of that State”.

In dissimilarity of other common law countries, Australia’s double jeopardy law is concerning with perjury mostly. What the law states is someone cannot be acquitted for perjury for a crime after already being acquitted. The person is basically getting charged again with the same crime. In the case of R v Carroll, two decades after a man was acquitted of murdering someone, police found extra evidence that had to do with that case. The police found out that the man’s alibi, which was presented during the murder case, was not true. They successfully charged him with perjury. This caused outrage in the UK and the case was taken to higher courts.

In Canada they have the Canadian Charter of Rights and Freedom, which is a provision of section eleven prohibiting double jeopardy. In Canada this only applies after the defendant or accused person has been tried for the crime convicted or acquitted. Once the decision has been made, the laws of Canada allow the courts to appeal the acquittal. If for some reason the acquittal is dismissed from court the new trial is not considered double jeopardy and the verdict of the first trial would have been voided (annulled). In some cases; court appeals may substitute the conviction for acquittal.

In order for an appeal of an acquittal to be successful, Canada’s Supreme courts must allow the crown to show that an error was made in the trial provide non substantial evidence to the verdict. In the book by Martin Friedland , “My Life in Crime and Other Academic Adventures”, “ contends that the rule should be changed so that a retrial is granted only when the error is shown to be responsible for the verdict, not just a factor”. Hardly ever is a crown appeal made, but in the case the crown appeal is granted, it can be taken back to trial court to determine the charges or Substituted the acquittal meaning that there will be no new trial and you will be convicted and sentenced for the crime.

In France, once the appeals in a case have been exhausted and judgments have been considered finial and all case has been closed. The case can be carried back to court for a retrial if new evidence is bought about due to the fact that France does not have a double Jeopardy law. In certain cases, there may be a statute of limitation on some charges.

In Germany the basic law for Federal republic does not provide protection against double jeopardy. In the case of an acquittal of a defendant in a case, the defense and the prosecutor can appeal against a verdict. They can question a less serious offense, but on the other hand in a more serious offense appeals are restricted of the law.

The United States courts came to an agreement that the Fifth Amendment Double Jeopardy Clause pertains only to the legal settings that are brought to criminal court by federal and state governments. Once the defendant has been acquitted in a case there will be no appeals or retrial due the double jeopardy law which precludes it.

Criminal and civil, are two main divisions in the U.S. Legal system. The criminal is designed to punish people that commit wrongful acts or crimes against the public. In the civil division, it is intended to pay damages to victims monetarily for damages or for any injury suffered at the hands of another civilian. But, an individual whom has been acquitted on a criminal case can without violating Double Jeopardy Clause be required to pay monetary damages in civil settings.

In conclusion, no one can be or will be tried twice for the same crime according to the United States Constitution Fifth Amendment Law (double jeopardy). Therefore, the government both state and federal must have thoroughly investigated the intricate details of a crime and be assured that all necessary precautions are meet in order to obtain a conviction and not an acquittal.

References

Fifth Amendment. (2011). In Encyclopedia Britannica. Retrieved from

http://www.britannica.com/EBchecked/topic/206470/Fifth-Amendment

Liberty University online Library/ Double Jeopardy

Simmons, Ann M. (2008). Judge Delays Ruling in 1981 Murder Case. The Los Angeles

http://billofrightsinstitute.org/resources/educator-resources/americapedia/americapedia-bill-of-

rights/fifth-amendment/double-jeopardy/

Times Retrieved from http://articles.latimes.com/2008/aug/16/local/me-briefs16.S1

www.simplejustice.us

www.digitalcommons.law.edu

http://www.law.cornell.edu/wex/double_jeopardy

http://articles.sun-sentinel.com/1997-06-28/news/9706270465_1_prosecutors-first-jury-case

APA cited

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