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Debate: Double Jeopardy Rule, Abolition of

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Should the double jeopardy rule be abandoned?

Background and context

With habeas corpus, this is one of the longest standing rules of English law, dating back to the 12th century - it is also one of the most challenged. The rule exists in the court structure of England and Wales, and the legal systems that have developed from it. ‘Double jeopardy’ is prohibited by the 5th amendment to the US constitution, where it stops further prosecution in cases like that of the murder of Brenda Sue Schaefer (in Kentucky), where photographs of her boyfriend Mel Ignatow killing her emerged a year after his acquittal. Spurred on by former Chief Justice Sir Anthony Mason, who favours reform, Australian law constantly has this debate in the wake of such cases as R v Carroll (1985): cases in which guilt seems much more likely with current knowledge (e.g. DNA evidence) than it did at the time of trial, but the accused is immune from prosecution because of the rule. In the UK in March 2001, a Law Commission report recommended that a murder case could be retried, if there is compelling new evidence – thus ending the double jeopardy rule in murder cases. The Labour government indicated that it would bring in legislation to give effect to this proposal in the next parliamentary sessionIf the ‘double jeopardy’ rule were to be removed, the High Court would be able to quash an acquittal on the grounds of new evidence being available, and direct a new trial to take place. Reform models vary but normally include at least some of the following restrictions:*that another trial can only occur once – the maximum number of trials will be two, not one*that new evidence has emerged, making conviction substantially more likely*that the preliminary hearing deciding whether the trial will go ahead will sit with reporting restrictions*that a second trial can only occur when the offence is of a certain type, such as homicide*that a second trial can only occur when the offence is of a minimum severity (for example, attracting a five year custodial sentence or greater.[1]

Wikipedia: Double Jeopardy

This article is based on a Debatabase entry written by Alex Deane. Because this document can be modified by any registered user of this site, its contents should be cited with care.


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Guilt as criteria: Should guilt be the primary criteria for trials, not whether a defendant has been tried before?

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Yes

Guilt should be the primary criteria for trials, not double jeopardy considerations: 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. We believe that guilty people should be punished for their crime, and our justice system should be tailored to allow that. We have as great a duty to ensure miscarriages of justice are not perpetrated on victims as on accused. An offence committed ten years ago does not cease to be an offence because time has passed, or because the perpetrator has managed to evade justice in the past. The criteria by which the decision to charge an individual is taken ought to be likelihood of guilt, not whether or not they have had a trial before.[2]

This law protects evil doers: Who are we protecting with this rule? People who were wrongly acquitted, as displayed by later blatant and obvious proof of guilt. The murderer whose voice couldn’t be identified on the tape; the rapist who couldn’t be identified because DNA testing wasn’t sufficiently developed at the time; the robber who couldn’t be identified because facial mapping technology didn’t exist to show their face beneath the mask. Why would the state be in their favour and against the victims that so deserve justice - why should victims suffer because evidence didn’t emerge until later?[3]

When a conviction appears tainted, we allow a retrial; Why not for an acquittal? We allow convictions to be overturned because new technology or evidence indicates innocence - why shouldn’t we allow a retrial when it indicates guilt?[4]

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No

It's more important that a justice system provide is a clear result: The proposition may argue that this will only apply to ‘exceptional’ cases - but the truth is that every case is potentially subject to revisitation, and closure is never available - not to the acquitted accused, not to victims, not to relatives.[5]

Banning "double jeopardy" laws would help protect innocent people from continual prosecution: The double jeopardy rule protects everyone from the danger of constant harassment from the state. Otherwise, innocent, acquitted people will never be sure that another prosecution might not happen in the future. The opposition would rather see a guilty man occasionally go free than see the resources of the state trained on individuals again and again and again.[6]

‘Guilt’ is not verifiable in the same way in a second trial. When asked ‘what did you see?’ a witness is likely to reply, ‘what did I say last time?'. It’s no longer a true test of evidence; the evidence from the last trial is all presumed to be accurate and can’t be satisfactorily challenged.[7]

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The rule of law: Does double jeopardy undermine the rule of law and trust in the judicial system?

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Yes

When crimes goes unpunished by double jeopardy laws, it undermines our faith in the justice system: Our bargain with the state entails the state’s right to judge the individual because the state protects the individual: if our attackers roam the streets because an arbitrary legal rule exempts them from prosecution despite clear guilt, then that system has broken down. Victims deserve justice and it is an insult to them, and all of us, to see their persecutors go free.[8]

All the rules and laws that protect the accused at the first trial will be in place at a second. The Presumption of innocence, proof beyond reasonable doubt, the right to a fair hearing and competent counsel, the judge’s duty to appropriately direct the jury, etc. will all continue to apply and prevent miscarriages of justice from occurring.[9]

The judicial system is unlikely to be overwhelmed with retrials. Much of the current push for the end of the double jeopardy rule comes from the widespread use of DNA testing, which has allowed many old cases to be revisited with compelling new evidence of guilt or innocence. After a few years, the impact of DNA testing will be greatly reduced and there will be very few retrials.[10]

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No

The rule of law will actually come to mean less if it exists in a perpetual state of potential overturn. We need to be protected from the state in other ways, too - from the vindictive or obsessed policeman that will pursue a case because he ‘knows’ the accused, properly acquitted in a court of law, to be guilty nevertheless. That is the nature of the police force, because we ask them to search for guilt - unless we provide a rule saying when to stop investigating, it will simply continue and continue. Given that we are talking about a tiny proportion of cases, it is better to have the principle of finality - because the police will spend vast amounts of time and effort and money on case that are already resolved, to the detriment of crimes that will receive less attention.[11]

The presumption of innocence will be undermined in a retrial: Juries will know this is a retrial – because evidence will have to be ‘read’ from the first trial where witnesses have died, because notes from ‘last time’ will be available to advocates and the accused, because the legal procedure of the last trial will be subject to discussion in this one. If a jury knows a case has been brought again, there will be a presumption that the accused is guilty because a higher court has already decided that the new evidence makes the acquitted defendant now look guilty after all, and so granted a retrial. The presumption of innocence will no longer exist. And unless the system is going to be overwhelmed with retrials like this, in which case it would be unworkable, then second trial capacity can only (and rightly) be directed towards ‘exceptional’ cases. Such cases are well known - like that of the murder of Stephen Lawrence. How could individuals facing trial again on the same charges, when in the glare of media attention it has been declared they should have been convicted at the first trial? How could they possibly expect a fair trial?[12]

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Police work: Will police be able to maintain the integrity of their investigations through a ban on double jeopardy laws?

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Yes

The Police should be able to restrain themselves from over-pursuing an investigation: While it may be possible that the police could continually attempt to overturn rulings if double jeopardy laws were banned, it would not be difficult to regulate police behavior in an appropriate manner on this point.[13]

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No

If the ‘double jeopardy’ rule is scrapped, police work will be sloppier, because police detectives will know that the insurance of a second trial exists. The ‘one-shot’ rule forces investigations and prosecutions to be of as high a quality as possible.[14]

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Reanalyzing evidence: Should cases be subject to a reanalysis of the evidence after the firs trial?

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Yes

New techniques make a reanalysis of evidence possible later on: Vast improvements in the technology of crime-solving have occurred in recent times. DNA testing, voice identification technology, facial mapping techniques that reveal faces beneath masks - all can now solve cases and show guilt in individuals whose escape from punishment occurred only because of a lack of satisfactory evidence. For example, In 1963 when Hanratty stood trial for the A6 murder (a gruesome offence where the abused victim was shot in her car and left to die on the motorway), semen stains on the victim’s underwear could not be investigated using the technology of the day. He was convicted anyway on the facts, but if he hadn’t been, and thanks to advances in technology the sperm turns out later to be his (as it has), shouldn’t we use that evidence to obtain justice for those concerned? Some evidence couldn’t possibly have been used at the time of trial, because the technology doesn’t exist. Looked at now, it could demonstrate conclusive guilt. If such evidence exists, isn’t there a compulsion to use it? How can we ignore it?[15]

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No

The implications of reanalysis should be looked at carefully: This would grant police and the prosecution the right to prosecute an individual if the evidence against them can be ‘reanalysed.’ Surely almost all cases could see such ‘improvement in investigatory techniques,’ allowing the state to pursue individuals at will. Presumably this ‘generation’ of techniques isn’t the last; why won’t the same logic hold in asking for a third trial? A fourth? A fifth?…[16]


Motions:

  • This House would scrap the double jeopardy rule
  • This House would allow retrials for the same offence
  • This House would not let the guilty walk free

In legislation, policy, and the real world:

See also

External links and resources:

Books:


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