Double Jeopardy

Author:Jay A. Sigler

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Double jeopardy is the most ancient procedural guarantee provided by the American BILL OF RIGHTS. Rooted in Greek, Roman, and canon law, the right not to be put twice in jeopardy may be regarded as essential to a right to TRIAL BY JURY, and is well established in the law of other nations.

The Fifth Amendment of the Constitution includes the simple phrase: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Yet this phrase, which has been copied in most American state constitutions, conceals a number of complex policy issues, many of which are still unsettled in American law in spite of numerous judicial interpretations since its birth in 1791.

In the course of time American courts abandoned any insistence that the jeopardy required involve a risk of life or limb, even though that had been an important consideration under the harsh criminal law of eighteenth-century England. Thus, the policy underlying the double jeopardy protection does not depend upon the hazard of severe physical punishment or death.

The English COMMON LAW recognizes the pleas of autrefois acquit (former acquittal) and autrefois convict (former conviction) to preclude retrial of an accused person, but American law has taken a more expansive view of the right. In America a prior accusation without a verdict could result in a successful plea of double jeopardy. The American version of the right is more generous to accused persons in many other respects, making double jeopardy an important potential source of protection.

In Green v. United States (1957) Justice HUGO L. BLACK provided a persuasive explanation of the American concept

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of double jeopardy. He suggested that the guarantee against double jeopardy is aimed primarily at three potential abuses of governmental power: "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby (1) subjecting him to embarrassment, expense and ordeal and (2) compelling him to live in a continuing state of anxiety and insecurity, as well as (3) enhancing the possibility that even though innocent he may be found guilty."

Double jeopardy policy embodies a conflict between a defendant's interest in "being able once and for all, to conclude his confrontation with society," as the Court said in United States v. Jorn (1970), and...

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