Truly constitutional? The American double jeopardy clause and its Australian analogues.

Author:DiBianco, Gary


The prohibition against double jeopardy has been recognized as fundamental in both the United States and Australia. The idea that "no man is to be brought into jeopardy of his life, more than once, for the same offense"(1) was a universal maxim of the common-law of England transmitted to both countries. In the United States the common law rule was included in the Bill of Rights and was thus given constitutional significance. The Fifth Amendment guarantees that no person shall "be subject for the same offence to be put twice in jeopardy of life or limb. . . ."(2) In Australia, however, double jeopardy protection remains a creature of the common law, primarily in the form of the pleas of autrefois acquit(3) and autrefois convict,(4) supplemented by important statutory protections.(5) Double jeopardy is a useful topic for examining the difference between constitutional and common-law rules, because both American and Australian double jeopardy law originated in England, and the constitutional/common-law divergence can be traced from similar origins.(6)

Constitutional provisions carry special weight in a system of laws, and the American Double Jeopardy Clause is no exception. "Our courts of justice would have recognized and acted upon [the prohibition against double jeopardy] as one of the most valuable principles of the common law without any constitutional provision. But the framers of our Constitution have thought it worthy of especial notice."(7) The Australian High Court has noted that "the rule against double jeopardy has constitutional force in the United States,"(8) and the Court presumes that a constitutional provision affords greater protection than the common law. This Note challenges that presumption through an examination of different applications of double jeopardy law in both countries. The Note explores both the strengths and limits of constitutional adjudication.(9) Comparison of American and Australian double jeopardy law reveals that the United States' constitutional provision does not always provide extra protection. Indeed, the permanence it provides often perpetuates formalist, historical rules that do not serve the spirit of the Double Jeopardy Clause.

This Note begins with a brief discussion of the special attributes that constitutional provisions are thought to have. It then summarizes the history of double jeopardy in the United States and Australia. The Note then compares the application of different rules in the context of double jeopardy: whether jeopardy attaches to the dismissal of an indictment, whether the government can appeal from acquittals, and what test is used to determine whether two offenses can be deemed as the same offense for double jeopardy purposes. The Note further compares prohibitions on double punishment for one criminal transaction, successive prosecution and punishment by dual sovereigns, and the applicability of collateral estoppel in the criminal context.

  1. Constitutional Attributes

    A number of scholars have sought to articulate what gives a legal provision "constitutional" character. As a full discussion of constitutional theory is beyond the scope of this Note, the Note attempts to work from those principles that are well settled and uncontroversial. Very generally, constitutions have two purposes: to create or codify rights and to establish political structures.(10) "To constitute means to make up, order or form; thus a nation's constitution should pattern a political system."(11) In the United States, the political institutions were created, in fact "literally `constituted', by the founding document."(12) In establishing a tri-partite political structure, it was the express goal of the American Constitution to check governmental power and protect individual rights.(13) In the United States, these structural protections were supplemented by the Bill of Rights, adopted to guarantee core rights upon which no majority or government can infringe.(14)

    For a constitution to guard individual rights, "it must protect substantive rights by limiting the power of the people's freely chosen representatives."(15) To have any force, these rights must be permanent or entrenched--that is, the provisions that establish the rights must be unamendable or at least difficult to amend.(16) In the words of one scholar, entrenched rights are those that have been placed "beyond the reach of ordinary politics."(17) In the case of individual rights, some are "entrenched because of a belief that they are in some sense pre- or extra-political, that is, because individuals ought to be allowed to exercise them regardless of what majorities might think."(18) The strategy in entrenching these rights is one of precommitment: guaranteeing structures and ideals that a polity may later be too nearsighted or too weak to follow.(19)

    From these theoretical underpinnings, it follows that constitutional provisions should be constitutive, supreme,(20) and entrenched. Applied in the abstract to double jeopardy, this would mean first that a constitutional double jeopardy provision somehow codifies or constitutes a consensus against double jeopardy. A constitutional provision would also represent a precommitment to a prohibition against double jeopardy, to be followed even if popular will sought to permit double jeopardy. A constitutional provision would prevent the legislature, and even courts, from scaling back its protection, and that protection would be permanent and well established.

  2. History

    The English common law of double jeopardy was conceptualized and clarified primarily by Coke and Blackstone.(21) The idea of double jeopardy originated in the pleas of autrefois acquit, autrefois convict, autrefois attaint,(22) and former pardon.(23) A defendant could raise any of these pleas to bar a subsequent prosecution. "By the time [Coke's] First Institute was completed, the double jeopardy doctrine was clearly delineated as a purely criminal concept serving as protection against the state even for relatively minor offenses"(24) It was Blackstone who began to use the term jeopardy to describe the pleas, though he limited the application of the doctrine to felonie.(25) Furthermore, the plea was extremely narrow, applying only to "a prosecution for the same identical act and crime."(26)

    The autrefois pleas have been retained in England and Australia, and they form the basis of double jeopardy in Australia. "The only pleas known to the law founded upon a former trial are pleas of a former conviction and or former acquittal for the same offense."(27) Because double jeopardy derives solely from the common law in Australia, the historical authorities cited for the doctrine are most frequently criminal law treatises and English case law.(28)

    In the United States, the history of constitutional double jeopardy protection--marked by a lack of debate, policy discussion, or other indicia of intent--does not follow the model of constitutional protections as reflecting a precommitment to positions on which there is widespread social consensus. The prohibition against double jeopardy first appeared as a constitutional provision in the New Hampshire Constitution, which "prevented a second trial for an offense for which the defendant had been previously acquitted."(29) A far broader double jeopardy prohibition was proposed to the First Congress of the United States to be included in the Bill of Rights: "No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense.(30) When the proposal was considered by the House of Representatives, New York's Representative Egbert Benson was afraid that the prohibition on a second trial would deny defendants the well-established right to appeal a first trial.(31) Benson proposed to strike the words "or trial" from the phrase. Connecticut's Representative Roger Sherman joined Benson and noted that "[i]f the [defendant] was acquitted on the first trial, he ought not to be tried a second time; but if he was convicted on the first, and any thing should appear to set the judgment aside, he was entitled to a second, which was certainly favorable to him."(32) Benson's proposal was defeated in the House, and the draft went to the Senate as Madison had originally proposed it.(33) The Senate substituted the phrase "be twice put in jeopardy of life or limb by any public prosecution" for the phrase "to more than one trial, or one punishment."(34) At some point the words "by any public prosecution" were dropped, and the phrase was approved by both Houses "with no apparent dissension."(36) Historians and judges have noted that the Clause was adopted with relatively little debate(37) and have speculated that it was intended to be a declaration of the law as it then stood.(38) Other than the discussion of whether the Clause would allow a second trial to the advantage of the defendant, little policy justification for the Clause or its phrasing was discussed in Congress.(39) As a result, judges can use the history as they please: relying on it when it is useful(140) and condemning it when it is not.(41)

    The sparse debate and uncertain history of the Double Jeopardy Clause call into question its constitutional character. Other than the fact that the Clause was included in the Bill of Rights, the policies, ideals, and even the wording of the Clause were not reached through a great consensus. It is therefore questionable whether the history of the Clause supports the notion that it represents a provision created outside the normal political process, or one that expresses precommitment to a set of ideals.(42)


    The areas of comparison chosen provide representative examples of the different stages of a prosecution at which double jeopardy claims occur. The comparisons also illustrate that while similar factual situations engender similar analysis in both the United...

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