Double Jeapordy

[IrisHope]

The ‘double jeopardy’ rule means that an individual cannot be tried again for the same offence if acquitted. Should the rule be scrapped?

A "Pro" argument could be the problem with the ‘double jeopardy’ rule is that people who are clearly guilty - because new evidence has emerged, because they’ve confessed - are not being punished for crimes they have committed. What do you think?

edited because I would like to hear both sides before I definitively decide which side I'm on.

[lawyerlee]

What makes you ask? Just curious because it's a pretty basic part of criminal law in America, found in the Bill of Rights. So, no, I definitely don't think we should amend the Constitution to do away with this protection.

[IrisHope]

Why do you think it's good to have? I just don't understand why we would protect someone if we find evidence that they are indeed guilty after the trial.
I mean who are we really protecting with this rule? People who were wrongly acquitted, as displayed by later obvious proof of guilt.

I am just asking because it's Monday and don't remember if this topic was ever discussed. No real reason :)

[amew]

What makes you ask? Just curious because it's a pretty basic part of criminal law in America, found in the Bill of Rights. So, no, I definitely don't think we should amend the Constitution to do away with this protection.

I agree completely. The double jeopardy prohibition is a foundation of Anglo-American legal system. I cannot imagine whay we would scrap the whole concept. Not to mention that it would be rather unprecented and just generally disturbing, IMO, to start removing rights from the Bill of Rights. Of course, the Supreme Court has interpreted the Fifth Amendment's double jeopardy prohibition to mean different things over the years, so there may be some wiggle from in the interpretation of the text. Here's the actual text of the Fifth Amendment, FYI:


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; nor shall private property be taken for public use, without just compensation.

[IrisHope]

Besides the fact that we've always had this protection, if we were developing the constitution all over again would you include it?

[fuzzy]

I just don't understand why we would protect someone if we find evidence that they are indeed guilty after the trial.

Mostly people who have been wrongly accused -- from over zealous prosecutors who gain political clout from finding a scapegoat, regardless of whether said scapegoat is or is not guilty.


Besides the fact that we've always had this protection, if we were developing the constitution all over again would you include it?

Hell, yes. I will always be comfortable with guilty people walking free than any innocent person -- even one -- being jailed unjustly.

[IrisHope]

Fuzzy, interesting point.

[fuzzy]

I don't have any unresolved issues over our criminal justice system. Really. ;)

[IrisHope]

LOL

[lawyerlee]

Besides the fact that we've always had this protection, if we were developing the constitution all over again would you include it?
Absolutely. It would be well beyond the scope of this conversation to get into the philosophy behind the formation of a Constitution, but a concept like double jeopardy is *more* than just the protection it provides. And I don't mean to make light of that protection because that in and of itself is justification for the existence of this principle in our Constitution. But a provision like this one evidences the ways in which the law, as distinguishes from equity provided by the crown, would encompass a limited power to take away a person's life or liberty by only giving one opportunity to prove a crime based on a given set of facts and circumstances. It was an incredibly important distinction between the way things were done when the king decided people's fates versus when the people decided each other's fates.

[IrisHope]

Diana, it's great to hear from an attorney!

[amew]

Yes, I would include the double jeopardy prohibition if I were drafting a new constitution. Making anyone withstand the stress of a criminal trial and the threat to their life or liberty for the same offense multiple times after a final judgment has been entered is, IMO, cruel and senseless. It would create an incentive for governments to expend endless amounts of time and resources to repeatedly try particularly disliked individuals, thereby encouraging a witch hunt mentality. Can you imagine being tried for something, acquitted, and then repeatedly re-tried until the government either gets a jury that will convict you or you break down and lose the will or the resources to properly defend yourself? Not to mention the fact that the criminal justice system is extremely backlogged as it is, and allowing multiple trials for the same offense would just lead to greater delays in trying defendants and an increased need for prosecutors, public defenders, and judges to handle the additional case burden.

[BTB]

We currently allow sentences to be overturned if new evidence casts doubt on the final judgment; I would prefer, if the judgment is overturnable, that it be so in both directions. It would be reprehensible to allow an innocent man, convicted nonetheless, to remain in prison when evidence demonstrates his innocence. I think it equally reprehensible to allow an acquited guilty man to retain his freedom in the face of new, incontrovertible evidence that he ought not have it.

However, that is what I think is 'ideal', and how to introduce that type of equity based on 'truth' into our flawed justice system which is based on what is provable, I haven't a clue.

[IrisHope]

BTB my thinking was similar to yours.

[amew]

We currently allow sentences to be overturned if new evidence casts doubt on the final judgment; I would prefer, if the judgment is overturnable, that it be so in both directions. It would be reprehensible to allow an innocent man, convicted nonetheless, to remain in prison when evidence demonstrates his innocence. I think it equally reprehensible to allow an acquited guilty man to retain his freedom in the face of new, incontrovertible evidence that he ought not have it.

I am not bothered by the apparent inequity in allowing convictions to be overturned in light of new evidence while not allowing acquittals to be similarly overturned. This imbalance stems from the presumption of innocence in the eyes of the law. We afford criminal defendants certain advantages by virtue of the fact that their life and liberty is at stake, including the presumption of innocence, relatively high standards for proving guilt (beyond a reasonable doubt), attorneys provided for by the government, and an assurance that an acquittal will be treated as final. In some sense, our legal system does treat the wrongful conviction of the innocent as more reprehensible than the acquittal of the guilty, and I think that is as it should be in any society with a robust protection of individual rights. A convicted defendant asking the government to retry a case in light of new evidence simply does not burden the government to the same extent that the government asking an acquitted defendant to stand trial again would. In the latter case, an individual's liberty is at stake, and therefore an additional layer of protection is in order.

[IrisHope]

Amew are you an attorney as well?

[amew]

Amew are you an attorney as well?

Yup. I guess I blew my cover. ;)

[BTB]

Your secret is safe with us. ;)

While I understand the logic behind that argument, I can't be enthusiastic about it. Why do we hold trials at all - that is, not why have we chosen that route to deciding whether or not to punish - but why do we seek to punish, if it is deemed appropriate? Is it out of a sense of "justice" for it's own sake? Is it because the criminal has offended society itself? Or because the victim's family has been wronged? Or all of the above? I've long forgotten who the quote is from, but remember reading that it'd be preferable "to see 10 guilty men go free, than one innocent man wrongly imprisoned" or somesuch. Thus the protections afforded the accused are understandable in their premise, but when incontrovertible evidence surfaces that would have condemned the accused but for the timecourse of it's discovery, in my little corner of the world allowing the now-"proven" criminal to flaunt his freedom is an insult to the very things punishment was meant to set right: justice, society, and the family of the victim (or victim him/herself).

Thus while I understand the necessity of having a court system based around what can be 'proven', I would rather have a system centered around 'actual truth', and when the latter can be had, am supportive of dispensing with our proof-based conventions to honor it.