Real Crime Stories/Paranormal Hauntings/Conspiracy Theories Book II

Double Jeopardy (Part II)

Scotland

The double jeopardy rule no longer applies absolutely in Scotland since the Double Jeopardy (Scotland) Act 2011 came into force on 28 November 2011. The Act introduced three broad exceptions to the rule: where the acquittal had been tainted by an attempt to pervert the course of justice; where the accused admitted their guilt after acquittal; and where there was new evidence.

Northern Ireland

In Northern Ireland, the Criminal Justice Act 2003, effective 18 April 2005, makes certain "qualifying offense" (including murder, rape, kidnapping, specified sexual acts with young children, specified drug offenses, defined acts of terrorism, as well as in certain cases attempts or conspiracies to commit the foregoing) subject to a retrial after acquittal (including acquittals obtained before the passage of the Act) if there is a finding by the Court of Appeal that there is "new and compelling evidence."

United States

The ancient protection of the Common Law against double jeopardy is maintained in its full rigor in the United States, beyond the reach of any change save that of a Constitutional Amendment. The Fifth Amendment to the United States Constitution provides:

... Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;...

Conversely, double jeopardy comes with a key exception. Under the dual sovereignty doctrine, multiple sovereigns can indict a defendant for the same crime. The federal and state governments can have overlapping criminal laws, so a criminal offender may be convicted in individual states and federal courts for exactly the same crime or for different crimes arising out of the same facts. However, in 2016, the Supreme Court held that Puerto Rico is not a separate sovereign for purposes of the Double Jeopardy Clause. The dual sovereignty doctrine has been the subject of substantial scholarly criticism.

As described by the U.S. Supreme Court in its unanimous decision concerning Ball v. United States 163 U.S. 662 (1896), one of its earliest cases dealing with double jeopardy, "the prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial." The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishments in the same indictment. Jeopardy "attaches" when the jury is impaneled, the first witness is sworn, or a plea is accepted.

Prosecution after acquittal

With two exceptions, the government is not permitted to appeal or retry the defendant once jeopardy attaches to a trial unless the case does not conclude. Conditions which constitute "conclusion" of a case include

· After the entry of an acquittal,

· whether a directed verdict before the case is submitted to the jury,

· a directed verdict after a deadlocked jury,

· an appellate reversal for sufficiency (except by direct appeal to a higher appellate court),

· or an "implied acquittal" via conviction of a lesser included offense.

· re-litigating against the same defense a fact necessarily found by the jury in a prior acquittal, even if the jury hung on other counts. In such a situation, the government is barred by collateral estoppel.