Double jeopardy

For the clause in the U.S. Constitution, seeDouble Jeopardy Clause.For other uses, seeDouble jeopardy (disambiguation).Not to be confused withMultiple jeopardy.

Injurisprudence,double jeopardyis aprocedural defence(primarily incommon lawjurisdictions) that prevents an accused person from beingtriedagain on the same (or similar) charges following anacquittalorconvictionand in rare casesprosecutorialand/orjudge misconductin the samejurisdiction.Double jeopardy is a common concept incriminal law– incivil law,a similar concept is that ofres judicata.The double jeopardy protection in criminal prosecutions bars only an identical prosecution for the same offence; however, a different offence may be charged on identical evidence at a second trial.Res judicataprotection is stronger – it precludes any causes of action or claims that arise from a previously litigated subject matter.

A variation incommon lawcountries is theperemptory plea,which may take the specific forms ofautrefois acquit('previously acquitted') orautrefois convict('previously convicted'). These doctrines appear to have originated in ancientRoman law,in the broader principlenon bis in idem('not twice against the same').

Availability as a legal defence

If a double jeopardy issue is raised, evidence will be placed before the court, which will typically rule as a preliminary matter whether the plea is substantiated; if it is, the projected trial will be prevented from proceeding. In some countries, certain exemptions are permitted. In Scotland, a new trial can be initiated if, for example, the acquitted has made a credible admission of guilt. Part of English law for over 800 years, it was partially abolished in England, Wales and Northern Ireland by theCriminal Justice Act 2003where, following demand for change, serious offences may be re-tried following an acquittal if new and compelling evidence is found, and if the trial is found to be in the public's interest.In some countries, including Canada, Mexico, and the United States, the guarantee against being "twice put in jeopardy" is a constitutional right.In other countries, the protection is afforded bystatute.

Incommon lawcountries, a defendant may enter aperemptory pleaofautrefois acquit('previously acquitted') orautrefois convict('previously convicted'), with the same effect.

Double jeopardy is not a principle ofinternational law.It does not apply between different countries, unless having been contractually agreed on between those countries as, for example, in theEuropean Union(Art. 54Schengen Convention), and in variousextradition treatiesbetween two countries.

International Covenant on Civil and Political Rights

The 72signatoriesand 166 parties to theInternational Covenant on Civil and Political Rightsrecognise, under Article 14 (7): "No one shall be liable to be tried or punished again for an offence for which he has already been finallyconvictedoracquittedin accordance with the law and penal procedure of each country. "However, it does not apply to prosecutions by two different sovereigns (unless the relevant extradition treaty expresses a prohibition).

European Convention on Human Rights

All members of theCouncil of Europe(which includes nearly all European countries and every member of theEuropean Union) have adopted theEuropean Convention on Human Rights.The optional Protocol No. 7 to the convention, Article 4, protects against double jeopardy: "No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for anoffencefor which he or she has already been finallyacquittedorconvictedin accordance with the law and penal procedure of that State. "

All EU states ratified this optional protocol except for Germany, the United Kingdom, and the Netherlands.In those member states, national rules governing double jeopardy may or may not comply with the provision cited above.

Member states may, however, implement legislation which allows the reopening of a case if new evidence is found or if there was a fundamental defect in the previous proceedings:

The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

In many European countries, the prosecution may appeal an acquittal to a higher court.This is not regarded as double jeopardy, but as a continuation of the same case. The European Convention on Human Rights permits this by using the phrase "finally acquitted or convicted" as the trigger for prohibiting subsequent prosecution.

By country

Australia

In contrast to other common law nations, Australian double jeopardy law has been held to further prevent the prosecution forperjuryfollowing a previous acquittal where a finding of perjury would controvert the acquittal. This was confirmed in the case ofR v Carroll,where the police found new evidence convincingly disproving Carroll's swornalibitwo decades after he had been acquitted of murder charges in the death ofIpswichchild Deidre Kennedy, and successfully prosecuted him for perjury. Public outcry following the overturn of his conviction (for perjury) by theHigh Courthas led to widespread calls for reform of the law along the lines of the England and Wales legislation.

During aCouncil of Australian Governments (COAG)meeting of 2007, model legislation to rework double jeopardy laws was drafted,but there was no formal agreement for each state to introduce it. All states have now chosen to introduce legislation that mirrors COAG's recommendations on "fresh and compelling" evidence.

InNew South Wales,retrials of serious cases with a minimum sentence of 20 years or more are now possible even if the original trial preceded the 2006 reform.On 17 October 2006, theNew South Wales Parliamentpassed legislation abolishing the rule against double jeopardy in cases where:

• an acquittal of a "life sentence offence" (murder,violentgang rape,large commercial supply or production ofillegal drugs) is debunked by "fresh and compelling" evidence of guilt;
• an acquittal of a "15 years or more sentence offence" was tainted (by perjury,bribery,or perversion of the course of justice).

On 30 July 2008,South Australiaalso introduced legislation to scrap parts of its double jeopardy law, legalising retrials for serious offences with "fresh and compelling" evidence, or if the acquittal was tainted.

InWestern Australia,amendments introduced on 8 September 2011 allow retrial if "new and compelling" evidence is found. It applies to serious offences where the penalty is life imprisonment or imprisonment for 14 years or more. Acquittal because of tainting (witness intimidation,jury tampering,or perjury) also permits retrial.

InTasmania,on 19 August 2008, amendments were introduced to allow retrial in serious cases if there is "fresh and compelling" evidence.

InVictoriaon 21 December 2011, legislation was passed allowing new trials where there is "fresh and compelling DNA evidence, where the person acquitted subsequently admits to the crime, or where it becomes clear that key witnesses have given false evidence".However, retrial applications could only be made for serious offences such as murder, manslaughter, arson causing death, serious drug offences and aggravated forms of rape and armed robbery.

InQueenslandon 18 October 2007, the double jeopardy laws were modified to allow a retrial where fresh and compelling evidence becomes available after an acquittal for murder or a "tainted acquittal" for a crime carrying a 25-year or more sentence. A "tainted acquittal" requires a conviction for an administration of justice offence, such as perjury, that led to the original acquittal.

Canada

TheCanadian Charter of Rights and Freedomsincludes provisions such assection 11(h)prohibiting double jeopardy. However, the prohibition only applies after an accused person has been "finally" convicted or acquitted.Canadian lawallows the prosecution to appeal an acquittal based on legal errors. In rare circumstances, when a trial judge made all the factual findings necessary for a finding of guilt but misapplied the law, acourt of appealmight also directly substitute an acquittal for a conviction. These cases are not considered double jeopardy because the appeal and the subsequent conviction are deemed to be a continuation of the original trial.

For an appeal from an acquittal to be successful, theSupreme Court of Canadarequires theCrownto show that an error in law was made during the trial and that it contributed to the verdict. It has been argued that this test is unfairly beneficial to the prosecution. For instance, in his bookMy Life in Crime and Other Academic Adventures,Martin Friedlandcontends that the rule should be changed so that a retrial is granted only when the error is shown to beresponsiblefor the verdict, not just a factor.

Though the charter permits appeals of acquittals, there are still constitutional limits imposed on the scope of these appeals. InCorp. Professionnelle des Médecins v. Thibault,the Supreme Court struck down a provision ofQuebeclaw that allowedappellate courtsto conduct ade novoreview of both legal and factual findings. In doing so, it held that the scope of an appeal may not extend to challenging findings of fact where no legal error has been made. At this point, the court reasoned, the process ceases to be an appeal and instead becomes a new trial disguised as one.

A notable example cited by critics of Canada's appeal system is the case ofGuy Paul Morin,who was wrongfully convicted in his second trial after the acquittal in his first trial was vacated by the Supreme Court. Another notable use of the system occurred in the case of child murdererGuy Turcotte,theQuebec Court of Appealoverturned the initial verdict ofnot criminally responsible by reason of mental disorderand ordered a second trial after it found that the judge had erroneously instructed the jury. Turcotte was later convicted of second-degree murder in the second trial. Another well-known example isHenry Morgentaler,whose repeated acquittals by juries were overturned on appeal in multiple provinces.

France

Once all appeals have been exhausted on a case, the judgement is final and the action of the prosecution is closed (code of penal procedure, art. 6), except if the final ruling wasforged.Prosecution for a crime already judged is impossible even if incriminating evidence has been found. However, a person who has been convicted may request another trial on the grounds of newexculpatingevidence through a procedure known asrévision.

French law allows the prosecution to appeal an acquittal.

Germany

TheBasic Law(Grundgesetz) for the Federal Republic of Germany protects against double jeopardy if a final verdict is pronounced. A verdict is final if nobody appeals against it.

Nobody shall be punished multiple times for the same crime on the basis of general criminal law.

— Art. 103 (3) GG

However, each trial party can appeal against a verdict in the first instance. The prosecution or the defendants can appeal against a judgement if they disagree with it. In this case, the trial starts again in the second instance, the court of appeal (Berufungsgericht), which reconsiders the facts and reasons and delivers a final judgement.

If one of the parties disagrees with the second instance's judgement, they can appeal it only for formal judicial reasons. The case will be checked in the third instance (Revisionsgericht) to see whether all laws were correctly applied.

The rule applies to the whole "historical event, which is usually considered a single historical course of actions the separation of which would seem unnatural". This is true even if new facts come to light that indicate other crimes.

The Penal Procedural Code (Strafprozessordnung) permits a retrial (Wiederaufnahmeverfahren), if it is in favour of the defendant or if the following events have happened:

A retrial not in favour of the defendant is permissible after a final judgement,

1. if a document that was considered authentic during the trial was actually not authentic or forged,
2. if a witness or authorised expert wilfully or negligently made a wrong deposition or wilfully gave a wrong simple testimony,
3. if a professional or lay judge, who made the decision, had committed a crime by violating his or her duties as a judge in the case
4. if an acquitted defendant makes a credible confession in court or out of court.
   — § 362 StPO

In the case of an order ofsummary punishment,which can be issued by the court without a trial for lesser misdemeanours, there is a further exception:

A retrial not in favour of the defendant is also permissible if the defendant has been convicted in a final order of summary punishment and new facts or evidence have been brought forward, which establish grounds for a conviction of a felony by themselves or in combination with earlier evidence.

— § 373a StPO

In Germany, a felony is defined by § 12 (1) StGB as a crime that has a minimum of one year of imprisonment.

India

A partial protection against double jeopardy is aFundamental Rightguaranteed under Article 20 (2) of theConstitution of India,which states "No person shall be prosecuted and punished for the same offence more than once".This provision enshrines the concept ofautrefois convict,that no one convicted of an offence can be tried or punished a second time. However, it does not extend toautrefois acquit,and so if a person is acquitted of a crime he can be retried. In India, protection againstautrefois acquitis astatutory right,not a fundamental one. Such protection is provided by provisions of the Code of Criminal Procedure rather than by the Constitution.

Japan

TheConstitution of Japan,which came into effect on 3 May 1947, states in Article 39 that

No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy.

However, in 1950, one defendant was found guilty in theDistrict Courtfor crimes related to the election law and was sentenced to paying a fine. The prosecutor wanted a stronger sentence and appealed to the High Court. As a result, the defendant was sentenced to three months of imprisonment. He appealed to the Supreme Court on the grounds that the sentence was excessive when compared with precedents and that he had been placed in double jeopardy, which was in violation of Article 39. On 27 September 1950, all fifteen judges of the Supreme Court made the Grand Bench Decision to rule against the defendant and declared that a criminal proceeding in the District Court, High Court and Supreme Court is all one case and that there is no double jeopardy. In other words, if the prosecutor appeals against a judgement of not guilty or a guilty decision that they think does not impose a severe enough sentence, the defendant will not be placed in double jeopardy.

On 10 October 2003, the Supreme Court made a landmark decision in the area of double jeopardy. The case involved Article 235 of the Penal Code, which addresses "simple larceny", and Article 2 of the Law for Prevention and Disposition of Robbery, Theft, etc., which addresses "habitual larceny". The Court ruled that in the event that there are two trials for separate cases of simple larceny, it will not be considered double jeopardy, even if the prosecutor could have charged both of them as a single crime of habitual larceny. The defendant in this case had committed crimes of trespassing and simple larceny on 22 occasions. The defence counsel argued that the crimes were actually one offence of habitual larceny and that charging them as separate counts was double jeopardy. The Supreme Court ruled that it was within the prosecutor's discretion as to whether to charge the defendant with one count of habitual larceny or to charge them with multiple counts of trespassing and simple larceny. In either case, it is not considered double jeopardy.

Netherlands

In the Netherlands, the state prosecution can appeal a not-guilty verdict at the bench. New evidence can be applied during a retrial at adistrict court.Thus one can be tried twice for the same alleged crime. If one is convicted at the district court, the defence can make an appeal on procedural grounds to the supreme court. The supreme court might admit this complaint, and the case will be reopened yet again, at another district court. Again, new evidence might be introduced by the prosecution.

On 9 April 2013, the Dutch senate voted 36 "yes" versus 35 "no" in favour of a new law that allows the prosecutor to re-try a person who was found not guilty in court. This new law is limited to crimes where someone died and new evidence must have been gathered. The new law also works retroactively.

Pakistan

Article 13 of theConstitution of Pakistanprotects a person from being punished or prosecuted more than once for the same offence. Section 403 ofThe Code of Criminal Procedurecontemplates a situation where a person having once been tried by a Court of competent jurisdiction and acquitted by such court cannot be tried again for the same offence or for any other offence based on similar facts. The scope of section 403 is restricted to criminal proceedings and not to civil proceedings and departmental inquiries.

Serbia

This principle is incorporated into theConstitution of the Republic of Serbiaand further elaborated in its Criminal Procedure Act.

South Africa

TheBill of Rightsin theConstitution of South Africaforbids a retrial when there has already been an acquittal or a conviction.

Every accused person has a right to a fair trial, which includes the right... not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted...

— Constitution of the Republic of South Africa, 1996, s. 35(3)(m)

South Korea

Article 13 of theSouth Korean constitutionprovides that no citizen shall be placed in double jeopardy.

United Kingdom

See also:Criminal Justice Act 2003

England and Wales

Double jeopardy has been permitted inEngland and Walesin certain (exceptional) circumstances since theCriminal Justice Act 2003.

Pre-2003

The doctrines ofautrefois acquitandautrefois convictpersisted as part of thecommon lawfrom the time of theNorman conquest of England;they were regarded as essential elements for protection of the subject's liberty and respect fordue processof law in that there should be finality of proceedings.There were only three exceptions, all relatively recent, to the rules:

• The prosecution has a right of appeal against acquittal in summary cases if the decision appears to be wrong in law or in excess of jurisdiction.
• A retrial is permissible if the interests of justice so require, following an appeal against conviction by a defendant.
• A "tainted acquittal", where there has been an offence of interference with, or intimidation of, a juror or witness, can be challenged in the High Court.

InConnelly v DPP[1964] AC 1254, theLaw Lordsruled that a defendant could not be tried for any offence arising out of substantially the same set of facts relied upon in a previous charge of which he had been acquitted unless there are "special circumstances" proven by the prosecution. There is little case law on the meaning of "special circumstances", but it has been suggested that the emergence of new evidence would suffice.

A defendant who had been convicted of an offence could be given a second trial for an aggravated form of that offence if the facts constituting the aggravation were discovered after the first conviction.By contrast, a person who had been acquitted of a lesser offence could not be tried for an aggravated form even if new evidence became available.

Post-2003

Following themurder of Stephen Lawrence,the Macpherson Report recommended that the double jeopardy rule should beabrogatedin murder cases, and that it should be possible to subject an acquitted murder suspect to a second trial if "fresh and viable" new evidence later came to light. TheLaw Commissionlater added its support to this in its report "Double Jeopardy and Prosecution Appeals" (2001). A parallel report into thecriminal justice systembyLord Justice Auld,a pastSenior Presiding Judgefor England and Wales, had also commenced in 1999 and was published as the Auld Report six months after the Law Commission report. It opined that the Law Commission had been unduly cautious by limiting the scope to murder and that "the exceptions should [...] extend to other grave offences punishable with life and/or long terms of imprisonment as Parliament might specify."1999 was also the year of a highly publicised case in which a man,David Smith,was convicted of the murder of aprostituteafter having been acquitted of the "almost identical"murder of sex worker Sarah Crump six years previously.Because of the double jeopardy laws that existed at the time, Smith could not be re-tried for Crump's murder, despite police insisting they were not looking for anybody else and that the case was closed and theBBCreporting that Smith had "beat" the earlier murder charge.

BothJack Straw(thenHome Secretary) andWilliam Hague(thenLeader of the Opposition) favoured the measures suggested by the Auld Report.These recommendations were implemented—not uncontroversially at the time—within theCriminal Justice Act 2003,and this provision came into force in April 2005.It opened certain serious crimes (including murder,manslaughter,kidnapping,rape,armed robbery,and seriousdrug crimes) to a retrial, regardless of when committed, with two conditions: theretrialmust be approved by theDirector of Public Prosecutions,and theCourt of Appealmust agree to quash the original acquittal due to "new and compelling evidence".Then Director of Public Prosecutions,Ken MacdonaldQC,said that he expected no more than a handful of cases to be brought in a year.

Pressure by Ann Ming, the mother of 1989 murder victim Julie Hogg—whose killer, Billy Dunlop, was initially acquitted and subsequently confessed—also contributed to the demand for legal change.On 11 September 2006, Dunlop became the first person to be convicted of murder following a prior acquittal for the same crime, in his case his 1991 acquittal of Hogg's murder. Some years later he had confessed to the crime, and was convicted ofperjury,but was unable to be retried for the killing itself. The case was re-investigated in early 2005, when the new law came into effect, and his case was referred to the Court of Appeal, in November 2005, for permission for a new trial, which was granted.Dunlop pleaded guilty to murder and was sentenced to life imprisonment, with a recommendation he serve no less than 17 years.

On 13 December 2010, Mark Weston became the first person to be retried and found guilty of murder by a jury (Dunlop having confessed). In 1996 Weston had been acquitted of the murder of Vikki Thompson atAscott-under-Wychwoodon 12 August 1995, but following the discovery in 2009 of compelling new evidence (Thompson's blood on Weston's boots) he was arrested and tried for a second time. He was sentenced to life imprisonment, to serve a minimum of 13 years.

In December 2018, convicted paedophileRussell Bishopwas also retried and found guilty by a jury for theBabes in the Wood murdersof two 9-year-old girls, Nicola Fellows and Karen Hadaway, on 9 October 1986. At the original trial in 1987, a key piece of the prosecution's case rested on the recovery of a discarded blue sweatshirt. Under questioning, Bishop denied that the sweatshirt belonged to him, but his girlfriend, Jennifer Johnson, alleged the clothing was Bishop's, before she changed her story in the trial, telling the jury she had never seen the top before.Attributed to a series of blunders in the prosecution's case, Bishop was acquitted by the jury after two hours of deliberations.Three years later, Bishop was found guilty of the abduction, molestation, and attempted murder of a 7-year-old girl in February 1990.In 2014, re-examined by modern forensics, the sweatshirt contained traces of Bishop's DNA, and also had fibres on it from both of the girls' clothing.Tapings taken from Karen Hadaway's arm also yielded traces of Bishop's DNA.At the 2018 trial, a jury of seven men and five women returned a guilty verdict after two-and-a-half hours of deliberation.

On 14 November 2019,Michael Weirbecame the first person to be twice found guilty of a murder. He was originally convicted of the murder of Leonard Harris in 1999, but the conviction was quashed in 2000 by the Court of Appeal on a technicality. In 2018, newDNA evidencehad been obtained and palm prints from both murder scenes were matched to Weir. Twenty years after the original conviction, Weir was convicted of the murder for a second time.

In February 2020,Merseyside Policecalled for further reform to the double jeopardy law in England so as to allow previously acquitted suspects to be re-interviewed by police.The force had wanted to re-interview a suspect in the unsolved case of themurders of John Greenwood and Gary Millerwho had been acquitted of the crime in 1981, but were not permitted to do so.The force had also not been allowed to re-charge the man of murder in 2019, causing them to publicly request that the law be changed and stating: "We believe being able to re-question suspects could potentially lead to being able to demonstrate the new and compelling evidence needed to reopen particular cases, including the murders of John Greenwood and Gary Miller".

Scotland

The double jeopardy rule no longer applies absolutely inScotlandsince theDouble Jeopardy (Scotland) Act 2011came 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

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

United States

In the United States, the protection incommon lawagainst double jeopardy is maintained through theDouble Jeopardy Clauseof theFifth Amendment to the Constitution,which provides:

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

Conversely, double jeopardy comes with a key exception. Under thedual 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, theSupreme Courtheld inPuerto Rico v. Sanchez VallethatPuerto Ricois 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 inBall v. United States163 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 punishment in the same indictment.Jeopardy "attaches" when the jury is impanelled, 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:
  • an acquittal by jury verdict
  • 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 alesser included offence.
• re-litigating against the same defence a fact necessarily found by the jury in a prior acquittal,even if the juryhungon other counts.In such a situation, the government is barred bycollateral estoppel.

In these cases, the trial is concluded and the prosecution is precluded from appealing or retrying the defendant over the offence to which they were acquitted.

This principle does not prevent the government from appealing a pre-trial motion to dismissor other non-merits dismissal,or a directed verdict after a jury conviction,nor does it prevent the trial judge from entertaining a motion for reconsideration of a directed verdict, if the jurisdiction has so provided by rule or statute.Nor does it prevent the government from retrying the defendant after an appellate reversal other than for sufficiency,includinghabeas corpus,or "thirteenth juror" appellate reversals notwithstanding sufficiencyon the principle that jeopardy has not "terminated".

The dual sovereignty doctrine allows a federal prosecution of an offence to proceed regardless of a previous state prosecution for that same offenceand vice versabecause "an act denounced as a crime by both national and state sovereignties is an offence against the peace and dignity of both and may be punished by each".The doctrine is solidly entrenched in the law, but there has been a traditional reluctance in the federal executive branch to gratuitously wield the power it grants, due to public opinion being generally hostile to such action.

Exceptions

There are two exceptions to bans on retrying defendants. If a defendant bribed a judge into acquitting him or her, the defendant was not in jeopardy and can be retried.A member of the armed forces can be retried bycourt-martialin a military court, even if he or she has been previously acquitted by a civilian court.This exception was used to prosecute Timothy Hennis for theEastburn family murdersafter his previous trial acquitted him.

An individual can be prosecuted by both the United States and anIndian tribefor the same acts that constituted crimes in both jurisdictions; it was established by the Supreme Court inUnited States v. Larathat as the two are separate sovereigns, prosecuting a crime under both tribal and federal law does not attach double jeopardy.

Multiple punishment, including prosecution after conviction

InBlockburger v. United States(1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not.Blockburgeris the default rule, unless the governing statute legislatively intends to depart; for example,Continuing Criminal Enterprise(CCE) may be punished separately from its predicates,as can conspiracy.

TheBlockburgertest, originally developed in the multiple punishments context, is also the test for prosecution after conviction.InGrady v. Corbin(1990), the Court held that a double jeopardy violation could lie even where theBlockburgertest was not satisfied,butGradywas later distinguished inUnited States v. Felix(1992), when the court reverted to theBlockburgertest without completely dismissing theGradyinterpretation. The court eventually overruledGradyinUnited States v. Dixon(1993).

Prosecution after mistrial

The rule formistrialsdepends upon who sought the mistrial. If the defendant moves for a mistrial, there is no bar to retrial, unless the prosecutor acted in "bad faith", i.e. goaded the defendant into moving for a mistrial because the government specifically wanted a mistrial.If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds "manifest necessity" for granting the mistrial.The same standard governs mistrials grantedsua sponte.

Retrials are not common, due to the legal expenses to the government. However, in the mid-1980s Georgia antique dealerJames Arthur Williamswas tried a record four times for murder over theshooting of Danny Hansford,and after three mistrials was finally acquitted on the grounds of self-defence.The case is recounted in the bookMidnight in the Garden of Good and Evil,which wasadapted into a filmdirected byClint Eastwood(the movie combines the four trials into one).

See also

• Sam Sheppard
• Emmett Till
• David Smith,British man acquitted of the murder of a woman in 1993, only to be convicted of murdering another woman in an "almost identical" case in 1999

Further reading

• Sigler, Jay (1969).Double jeopardy; the development of a legal and social policy.Cornell University Press [1969].

External links

Australia

In favour of the current rule prohibiting retrial after acquittal

• NSW Public Defenders Office

Opposing the rule that prohibits retrial after acquittal

• Questioning Double Jeopardy
• DoubleJeopardyReform.Org

United Kingdom

Research and Notes produced for the UK Parliament, summarising the history of legal change, views and responses, and analyses:

• Broadbridge, Sally (2 December 2002)."Research paper 02/74: The Criminal Justice Bill: Double jeopardy and prosecution appeals"(PDF).UK parliament. Archived fromthe original(PDF)on 20 November 2006.Retrieved5 January2012.
• Broadbridge, Sally (28 January 2009)."Double jeopardy".UK Parliament.Retrieved5 January2012.

United States

• FindLaw Annotation of the Fifth Amendment to the Constitution
• Double Jeopardy Game on uscourts.gov(archived fromthe originalon 2006-01-10)
• Jack McCall(famous murder case involving a claim of double jeopardy)

Other countries

• Law Reform Commission of Ireland Consultation Paper on Prosecution Appeals Brought on Indictment