Double Jeopardy

Double Jeopardy

Description

[Double jeopardy, t]he principle that a defendant may not be tried twice for the same offense[,] has been described as “one of the oldest ideas found in western civilization,” with roots traceable to early Greek, Roman, and canon law (Bartkus v. Illinois, 359 U.S. 121, 151-155 (1959) (Justice Black dissenting)). . . . William Blackstone recognized it as a “universal maxim of the common law of England that no man is to be brought into jeopardy of his life, more than once for the same offence”. The exact origins of the “universal maxim,” however, are not clear. A controversy in the twelfth century between Henry II and Archbishop of Canterbury Thomas a Becket over the trial and punishment of clerks in both ecclesiastical and King's courts may have influenced the adoption of the doctrine. It is also possible that the double jeopardy principles were not native to England and were taken from the Continent through canon law. The development of double jeopardy protection in England was strongly influenced by the political environment and by changes in criminal law and procedure. The tensions between church and state during the twelfth century caused sporadic application of the protection against punishment in both the ecclesiastical and King's courts. Within the King's courts, criminal procedure of the period permitted a penal proceeding to be initiated either by a private person (an appellor) or by the king or his agent. In the thirteenth century, the courts established that a suit by an appellor that resulted in either an acquittal or a conviction of the defendant was a bar to another suit by the same appellor. An indictment by the king was subject to the same limitation. A suit by an appellor, however, did not bar an indictment by the king. Further, double jeopardy limitations applied to capital offenses only. Not until the second half of the seventeenth century did the "universal maxim" receive more serious attention in English law. It was then held that a trial in another jurisdiction would bar further proceedings (Rex v. Thomas, 83 Eng. Rep. 1180 (K.B. 1664)). The Court of King's Bench ruled that reprosecution should be barred after an acquittal (Rex v. Read, 83 Eng. Rep. 271 (K.B. 1660)). In addition, the courts attempted to end the practice of discharging the jury when it appeared that a defendant would be acquitted, a practice instituted so that the prosecution could bring another action after improving the evidence. The movement in seventeenth-century England toward increased protection was not enough for some American jurisdictions, and therefore the double jeopardy doctrine was further expanded in the colonial period. For example, the doctrine was extended, first by Massachusetts and eventually by other colonies, to all offenses, capital and otherwise. Double jeopardy protection was generally not included in the first colonial constitutions, but the doctrine did appear in the case law. In 1789, the prohibition of double jeopardy was included in the Bill of Rights: the Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” These words, although simple, did little to clarify the meaning and scope of the protection. States formulated their own protection against double jeopardy, and many adopted standards different from those of the federal government. In 1969, however, the Supreme Court held that the Fifth Amendment double jeopardy clause applied to the states and that the same constitutional standards of double jeopardy restricted both state and federal governments (Benton v. Maryland, 395 U.S. 784, 793-796 (1969)).

Source Publication

Encyclopedia of Crime & Justice

Source Editors/Authors

Sanford H. Kadish

Publication Date

1983

Edition

1

Volume Number

2

Double Jeopardy

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