The Changing Tide of Double Jeopardy and American Reform
Known as double jeopardy to most, it is the idea that once you are brought in front of your peers or a court, once set free, no one may attempt to punish you for this act again. So why is the traditional understanding of former/double Jeopardy being put into jeopardy?
II. Origins of Double Jeopardy
III. Double Jeopardy in America
IV. Double Jeopardy Reform in the British Commonwealth
V. Reasons to Reform
VI. Double Jeopardy Reform in America
A change has been happening around the world. Not a change in climate or a change in politics. Rather a fundamental change to the nature of an age old legal right. To people in some countries and jurisdictions this has been a fundamental right, up there with a person’s right to trial. It has been a free standing rule for over 2000 years of recorded history. A person has the right to their day in court, but this addresses a person’s right to not have the same charges brought against them over and over again. Know as double jeopardy to most, it is the idea that once you are brought in front of your peers or a court, once set free, no one may attempt to punish you for this act again. So why is the traditional understanding of former/double Jeopardy being put into jeopardy? The law (in some countries) is evolving to let the State re-open cases for reasons of pressing concern; after the passing of a verdict. This then is an attack on ones freedom to be rid of trial and of the state attempting to punish one for the same crime.
The United Kingdom was first to address and reform the age old theory of Double Jeopardy, and Australia soon followed. This idea is fundamental in the common law, and is not really seen in some civil law countries. The United States has the idea of double jeopardy embedded in the 5th Amendment, and reading through some of the scholarly material, there seems to be a slow moving trend to entertain the idea of reform. This paper is going to look at the evolution of the double jeopardy maxim and its evolution in American law. Then shift its focus on the reasons for reform in the United Kingdom, and then look at the reason to reform the 5th Amendment in America.
II. Origins of Double Jeopardy
The origins of this age old maxim are difficult to locate. Many academics have debated the origin, but there is evidence that shows that ancient Jewish law recognized the principle in some form as did early Greek law, classical Roman law and cannon law. One can trace this idea through time with many mentions to Roman conduct in the trial process, or throughout some of the (now) Middle Eastern empires, where your verdict was the end of your time of trial. The Old Testament makes a mention to this principle (in a similar, but not exact form) in Deuteronomy 25:2.
Former Jeopardy’s recorded origins are also some what of a mystery. The Magna Carta Libertatum of 1215 does not have mention the idea of double jeopardy at all. Even though the idea was “floating” around English courts, it did not make a credible impact until sometime after the late 17th century. The King’s court did however bring up and address this issue. In the case of The King v. Read the prosecutor attempted to seek a new trial after the defendant was acquitted. This however was blocked by the Kings bench for being a breach of the double jeopardy maxim.
The English Common law is synonymous and even to an extent credited for incorporating the idea of barring multiple trials for the same offence into the legal process. As mentioned above the written form of double jeopardy did not come to surface till much later in recorded history. Not even after the English Civil war did the English Bill of Rights of 1689 have a written version of the double jeopardy provision. Some have argued that former Jeopardy principle did not make it on to recorded piece of text that was not case law until the adoption of the fifth amendment of the constitution of the United States of America.
But the double Jeopardy maxim has been fundamental to the common law and the adversarial process for over 800 years. Blackstone wrote that it was a “universal maxim of the common law of England that no man is brought into jeopardy of his life or limb more than once for the same offence” . English courts based the maxim around the Latin terms of autrefois acquit & autrefois convict which prevents another trial where the defendant has previously been acquitted or convicted of the same offence, and such definition is strictly applied. This idea has been entrenched in the legal traditions of England and the common law for many generations. However, what is interesting to note the English criminal law had not yet developed the present understanding of double jeopardy until the eighteenth century. This creation and essentially acceptance by the English legal community created (as some scholars believe) a universal maxim of the common law.
Former Jeopardy had then been brought over to the colonies of the British Empire. During this time period British legal traditions had been brought to the ends of the earth. The common law practicing countries such as The United States of America, Canada, New Zealand, India and Australia all have this maxim and fundamental right entrenched into their legal traditions. However the major differences are the ways in which this was enacted, which will later be important to the ways in which each country has attempted to reform the idea. The United Kingdom and Australia have enacted the idea through Statues. Canada and the United States have the maxim entrenched in the countries constitutions, and clarified by case law.
III. Double Jeopardy in America
The United States had former jeopardy brought over from England much like the other empire colonies. The inhabitants of the colonies enjoyed the same protections as British citizens, (so the protection of former jeopardy was utilized and recognized as in English common law). The Massachusetts Bay Colony enacted the Body of Liberties in 1641 which served as a blueprint to the adoption of a formal written rule to former jeopardy. The code stated “that no man shall be twice sentenced by civil justice for one and the same crime, offence or trespass ”, and this was the first time it was utilized in an American code of conduct/ code of rules.
Many other states followed the lead, by introducing language into their own codes. Connecticut drafted a double jeopardy principle into their code of 1672, and this protection was taken from the Bay Colony’s older Body of Liberties of 1641. The drafting of the original Articles of Confederation, did not have a double jeopardy clause. But one can safely conclude that the purpose of stopping multiple prosecutions was very important to the people who where building a nation of United States, because of the pressure building from the states to have it included in a formal constitution to not allow the government to put someone on trial over and over again.
The original Constitution did not contain the Bill of Rights, nor did it have inherent protections for the citizens of the newly found ‘State’. English acceptance and enforcement during this time period helped to solidify the maxim as fundamental to the trial process, and the people of the colonies wanted protections from such persecution by the State. The New Hampshire State constitution of 1784 had a protection to double jeopardy. Under article XVI (which Pennsylvania adopted something similar in their constitution of 1790, Article IX, §10 ), states that “No subject shall be liable to be tried, after an acquittal, for the same crime or offence ”. The delegates from the other states all wanted a guaranteed protection that mirrored this type of wording. Many states where either writing the protection into their constitutions’, or implementing it through statues.
George Washington called for greater protections in the Constitution, and those where addressed and brought into the Bill of Rights, which some authors agree was taken from the concerns of the New York delegation and their act of ratification, and then adapted and changed by a Senate committee to read “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. This was then put into the 5th amendment, with more amendments that where grouped as relating to criminal actions which was ratified in 1791.
From the case of Green v U.S. the court illustrates the reasons for including such an amendment. The justices believed that “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense ”. The court addresses the fear of constant state prosecution, by stating “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 subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty”.
Double Jeopardy in the United States has also developed through case law, attempting to a) differentiate it from the English counter part, and b) defining the scope in which a person is deemed to be put in Jeopardy twice. This process has been very important because it has created very unique legal theories that are only seen in the United States. The courts have attempted to stay true to the English definition, but through subsequent decisions addressed issues with state applicability and scope of the 5th amendment.
The courts have had a tough time with the interpretation of the 5th Amendment, in defining what constitutes a same offence. Originally, state courts decided most of the important double jeopardy cases in the United States, because of the relationship of the federal constitution to the state constitutions. For former jeopardy to apply to a case, the court must decide if the prosecution of the second case is for the same offence.
 David Rudstein, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy, 14 Wm. & Mary Bill of Rts. J. 193, 242
 (1660) 83 Eng. Rep. 271 (K.B.).
 Kenneth G. Coffin, Double Take: Evaluating Double Jeopardy Reform, 85 N.D. L. R. 771 (2010).
 U.S. Const. amend V.
 Chandrasekharan Pillai, Double Jeopardy protection: A comparative overview (Mittal Publications 1988).
 (2006) EWCA (Crim) 1354 (Para 1.) (Eng.).
 Hanah Roberts, Double Jeopardy, 170 JPN 804 (2006).
 See Pillai, supra note 5.
 See Rudstein, supra note 1.
 England has never actually had the maxim written out like that of the 5th amendment. Rather the statue has referred back to Blackstone’s definition, and made references to case law which has discussed former jeopardy.
 Rudstein, supra note 1 at 221.
 Massachusetts Body of Liberties of 1641, § 49, reprinted in The Colonial Laws of Massachusetts 47 (Harvard University Press. 1929).
 Christopher Collier, The Common Law and Individual Rights in Connecticut Before the Federal Bill of Rights, 76 CONN. B.J. 1, 9 (2002).
 James Q. Wilson, American Government: Brief Version 24-25 (Houghton Mifflin Co., 6th ed. 2003).
 P.A. Const. of 1790, art. IX §10.
 N.H. Const. of 1784, art. XVI.
 Rudstein, supra note 1 at 230.
 James Q. Wilson, American Government: Brief Version 26 (Houghton Mifflin Co., 6th ed. 2003).
 355 U.S. 184 (1957).
 Grady v Corbin, 495 U.S. 508, 533–36 (1992) (Scalia, J., dissenting).