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| Summary: ‘Double jeopardy’ means being tried twice for the same offence. The ‘double jeopardy’ rule means that an individual cannot be tried again for the same offence if acquitted. Should the rule be scrapped? |
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Author:Alex Deane ( United Kingdom )
Alex Deane won the World Universities Debating Championships 2004 in Singapore.
Created: Saturday, May 17, 2003
Last Modified: Saturday, May 17, 2003
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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*that t |
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| 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. |
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The most important thing a justice system can 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. Innocent, acquitted people will never be sure that another prosecution might not happen in the future.Furthermore, ‘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. |
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| 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? |
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It doesn’t matter how emotive the proposition gets: we’re not just protecting ‘evil people;’ the double jeopardy rule protects everyone from the danger of constant harassment from the state. 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. |
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| When we see people still unpunished for offences in society they’ve clearly committed, it damages 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. |
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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. |
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| As to the idea that the police will be sloppier, there is no guarantee that a second trial will be granted so it would be a very silly thing to do. Poor procedure in the police force or prosecution service can be tackled with or without this reform and is a separate issue to this debate. |
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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. |
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| 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? |
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The implications of this 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?… |
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| All the rules and laws that protect the accused at the first trial will be in place at a second - it’s not as if the rule of law suddenly disappears. 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. Nor is the system likely 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. |
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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? |
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| 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? |
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Logically, within the court system there is a higher expectation upon the state - with all its vast powers - than on the individual, who has minimal power to investigate and obtain evidence in his defence, who personally stands to lose liberty on the decision to be made, and who therefore deserves extra protections. Part of this means that there is a burden of proof - the state must prove ‘beyond reasonable doubt’ in criminal law - if doubt exists, then a conviction should be quashed. It’s disingenuous to say there should be parity between the parties here, since there is - quite rightly - no burden to prove beyond doubt on the accused. |
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| | 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
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rhonie
Member
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Posted: Thu Apr 8, 2010 02:38 pm
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Why are people continually trying to change or alter the United States Constitution these days? This appears to only suit the lack of common sense verses a right of guarantee to every "citizen" of the United States. The Fifth Amendment clearly was in place in show of a form of "checks and balances" within the justice system itself. Lacking this right, would only give the power of the state or federal jurisdictions the authority to try an individual over and over until they receive a verdict they so like. How is this going to fair to those being accused, or how much will the system become so strained from those seeking "personal" justice without a show of just cause? Double Jeopardy, as noted in the Constitution, is designed to allow the state or federal justice system a one-shot deal toward a conviction, which ensures the evidence is clearly shown to prove whether or not the person on trial can be found guilty and or innocent. To allow the justice system to openly try a person for the same crime on a repeated fashion takes away "life, liberty, and justice for all" out of the equation; thereby, throwing the entire purpose and meaning of the Constitutional rights of the people out the door.
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candyfloss
Member
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Posted: Fri Jan 8, 2010 09:05 am
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Thanks |
Debatabase
Member
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Posted: Wed Dec 20, 2006 12:08 pm
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Author: Alex Deane (United Kingdom)
Alex Deane won the World Universities Debating Championships 2004 in Singapore.
Created: Saturday, May 17, 2003
View Topic
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*that t |
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